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[ { "docid": "14863157", "title": "", "text": "in order at least to consider whether, under the circumstances and upon proper showing, Fanelli might be allowed some or all the compensation sought. Under circumstances quite similar to those reflected (thus far) by the present record, on appeal from the bankruptcy court, a district court reversed the bankruptcy court’s determination that it was without discretion to enter a nunc pro tunc order of approval of the employment of an attorney; as here, the attorney filed a Chapter 11 reorganization proceeding for his client under the new Code, which indicated that he would be counsel for the debtor in possession. In re King Electric Co., supra, 19 B.R. at 660. The attorney did not file a formal petition for approval of the employment until seven months later, at which time the bankruptcy judge disallowed compensation for services performed prior to that time, although he did authorize the attorney’s employment to continue to represent the debtor in possession. Noting that the purpose of the rule requiring court approval is not subverted when, subsequent to the services, adequate showing is made to justify the nunc pro tunc approval of the attorney’s employment, the district court stated: A review of the case law supports appellant’s argument that a nunc pro tunc order is not forbidden under the facts here presented. The Supreme Court has recognized the “overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction.” Marin v. Bank of England, 385 U.S. 99, 103, 87 S.Ct. 274, 277, 17 L.Ed.2d 197 (1966). The bankruptcy judge gave no reason for the denial of the order. Neither the Creditors’ Committee nor the Trustee has shown any prejudice that would result from entry of the order. Indeed, no reason for withholding equity has been advanced by anyone other than that the application was not timely. Additionally, because the Bankruptcy Court has full control over the allowance of fees, there is here no chance of overreaching through unnecessary or improper activity of counsel either before or after formal employment. Considering these factors, especially the failure to disclose any reason therefor, the Court holds that the" } ]

[ { "docid": "18578061", "title": "", "text": "the bankruptcy court’s final award of fees and expenses to Creel & Atwood in the amount of $224,226 and Jack Bryant for $36,906. The Grubbs group contests these awards as too high, while debtor’s counsel claim they should have received a bonus or contingency award for their successful efforts toward reorganization. All but one of these contentions lack merit. Fees of debtor’s counsel should be denied in toto, according to the Grubbs group, because of a conflict of interest, a contingency fee arrangement, and the request by debtor’s counsel that the court approve a fee-splitting arrangement. As will be seen in the following discussion, these are serious allegations, even if they were not substantiated against counsel in this case, and a hearing was certainly appropriate to determine their validity. It is surprising indeed that these allegations were made only by counsel for an independent group of shareholders' who were not guaranteed payment of their fees through the bankruptcy estate. Too frequently, court-appointed counsel for debtor and the official creditor committees’ interests in a case, sharing the mutual goal of securing approval for their fees, enter into a conspiracy of silence with regard to contesting each other’s fee applications. (One bankruptcy judge characterized this process as a “massive backscratching exercise.”) This is a violation of their duties as fiduciaries not only to their specific clients but to the interests of the debtor’s estate. In re Arlan’s Department Stores, 615 F.2d 925, 941 (2d Cir.1979). The numerous limitations imposed by the Bankruptcy Code upon compensation of court-appointed counsel, cited passim, are designed to insure the highest standards of ethical conduct and minimize the overhead expenses which can easily deplete a debtor’s estate. Vigilance is required by and among court-appointed counsel in particular to enforce the standards of the Code. If such counsel would scrutinize each other’s fee applications with the dedication that they pour into preparing their own, the compensation scheme of the Code would be fully vindicated. At the least, they should inform the court in writing, as and when interim fee applications for other parties are filed, that they have" }, { "docid": "18578057", "title": "", "text": "to formulate a plan. It was within the soundly exercised discretion of the bankruptcy court to conclude, faced with tangible efforts of this “minitude” and achievements that were contradicted by other parties in the bankruptcy, that the Grubbs group did not substantially contribute to reorganization. Appellants’ second contention is that the bankruptcy court erred by not valuing the derivative action to the bankruptcy estate. The bankruptcy court did conclude that the value of this derivative lawsuit was minimal in light of the fact that it was not being pursued by the proper party, specifically, the debtor or trustee. Under 11 U.S.C. § 323 (1984), the trustee or debtor in possession is the representative of the estate, and may sue and be sued. If an action belongs to the corporation under Texas law, then the action becomes property of the estate once the bank ruptcy petition is filed. In re Mortgageamerica Corp., 714 F.2d 1266, 1276 (5th Cir.1983). The lawsuit was never abandoned to the Grubbs group to prosecute. Under similar circumstances, such lawsuits have been dismissed, Mitchell Escavators, Inc. v. Mitchell, 734 F.2d 129, 132 (2d Cir.1984). Moreover, a shareholder can maintain a derivative suit only when the complaint alleges that the shareholder demanded the trustee to bring suit. See Kemper v. American Broadcasting Co., 365 F.Supp. 1272 (S.D.Ohio 1973). “Only demonstrable futility or the actual refusal of a demand ... can abrogate the Rule 23.1 prerequisite of such demand for prosecution of a corporate cause of action.” Id. at 1274. The record does not support a finding that the Grubbs group asked the debtor to take over its derivative action once the bankruptcy was filed. Since the debtor has never abandoned the cause of action, the bankruptcy court correctly found the lawsuit was of minimal value because it could be dismissed. Inherent in the bankruptcy court’s finding that the efforts of the Grubbs group .were duplicative of the equity security holders’ committee is the basic premise of the Bankruptcy Code that the bankruptcy court has broad supervisory powers over professional persons who render services for the estate. This Circuit" }, { "docid": "18578050", "title": "", "text": "plan of reorganization. On December 3, 1982, the instant Chapter 11 case was filed. An equity shareholders’ committee (the Committee) was formed to represent the interests of all shareholders of the debtor, and the bankruptcy court authorized the Committee to retain counsel on May 9, 1983 to further these interests. The debtor instituted two lawsuits against Mercantile Bank which questioned the stock transfer. Debtor commenced an adversary proceeding for damages from Mercantile exceeding $56,000,000 under a fraudulent conveyance theory. In a separate adversary proceeding, the debtor successfully sought to enjoin Mercantile from foreclosing under certain stock pledges. Sometime during the summer of 1984, the debtor, banks, and Committee began negotiations which culminated in the filing of a proposed plan of reorganization. The plan called for a global settlement of the three lawsuits pending among the debtor, the Bank and the Grubbs group. It provided that all creditor claims would be satisfied in full and that the shareholders would receive benefits from a settlement fund which initially totalled $5.4 million. Additionally, all three lawsuits would be dismissed with prejudice. The Grubbs group objected to confirmation of the plan by attacking the bankruptcy court’s power to settle the derivative lawsuit over their opposition. The court overruled this objection at the close of the confirmation hearing, confirmed the plan, and the three lawsuits were dismissed shortly thereafter. The order of confirmation has not been appealed. II. STANDARD OF REVIEW This court reviews the bankruptcy court’s findings of fact under the clearly erroneous standard, see Bankr.R.P. 8013; Richmond Leasing Co. v. Capital Bank, N.A., 762 F.2d 1303, 1308 (5th Cir.1985), but the bankruptcy court’s conclusions of law are subject to de novo review. Richmond Leasing Co., 762 F.2d at 1307. This court is mindful of the fact that, absent such errors, “district courts and bankruptcy judges have broad discretion in determining the amount of attorneys’ fees to award as compensation for services performed in connection with bankruptcy proceedings, and their exercise of that discretion will not be disturbed by an appellate court absent a showing that it was abused.” In re First Colonial Corp." }, { "docid": "18578053", "title": "", "text": "the benefit of the Chapter 11 estate. Third, the bankruptcy court found that the derivative action was merit-less because the pending state lawsuit became property of the estate once the bankruptcy petition was filed. As such, the lawsuit could have been dismissed for lack of a proper party plaintiff, i.e., the debtor, and therefore had little value to the bankruptcy estate. The Grubbs group attorneys contend that the bankruptcy court erred for three reasons. First, they believe their derivative action was the real motivating factor behind the filing and confirmation of a successful plan, hence its pursuit made a substantial contribution to the estate. Second, the bankruptcy court erred legally because its opinion assumed a duplication of services without comparing the Grubbs attorneys’ activities with those of the court-appointed Committee. Finally, the Grubbs group argues that the bankruptcy court erred as a matter of law because it did not “[opine] as to the value of the derivative action.” The applicable sections of the Bankruptcy Code provide that the court may award the actual, necessary expenses incurred by a creditor, including his attorneys’ fees, if he has made “a substantial contribution in a case under chapter 9 or 11 of this title.” 11 U.S.C. §§ 503(b)(3)(D), 503(b)(4) (1984). The legislative history is not fully instructive for the present case. However, the policy aim of authorizing fee awards to creditors is to “promote meaningful creditor participation in the reorganization process.” In re General Oil Distributors, 51 B.R. 794, 805 (Bankr.E.D.N.Y.1985); In re Calumet Realty Co., 34 B.R. 922, 926 (Bankr.E.D.Pa.1983). Further, “services which substantially contribute to a case are those which foster and enhance, rather than retard or interrupt the progress of reorganization.” In re White Motor Credit Corp., 50 B.R. 885, 892 (Bankr.N.D.Ohio 1985) (quoting In re Richton Intern’l Corp., 15 B.R. 854, 856 (Bankr.S.D.N.Y.1981)). Compensation has been denied where the services rendered by the creditor or shareholder were only “remotely related to the reorganization,” In re General Oil Distributors, 51 B.R. at 806, on the theory that “a creditor’s attorney must ordinarily look to its own client for payment, unless" }, { "docid": "23367218", "title": "", "text": "by the enactment of the 1978 Bankruptcy Code, the practical results of other changes made by the Code, and the reality of modem economic life. The first and foremost change Congress specifically enacted in 1978 was that attorneys or other professionals whose retentions have been approved by the Bankruptcy Court are to be compensated based on market rates, rather than the principle of “strict economy.” Congress explicitly rejected the Judge-created notions or stan dards that “economy of the estate” required the bankrupt’s estate to compensate attorneys at less than the rates established by the free market. In rejecting the prior standard for awarding professional compensation, and insisting on a standard established by the free market (tempered by other factors discussed herein) for the purchase and sale of professional services, Congress explicitly made known its intention to avoid the problems that existed from the inevitable operation of “Gresham’s Law,” created by the prior standard, that is, low fees drive competent professionals away from bankruptcy or to those bankruptcy-involved clients who would pay market rates. The second substantial change Congress specifically enacted in 1978, which bears on the general issue before us, was a fundamental change in the system of case administration. No longer would Bankruptcy judges or the Securities and Exchange Commission play a business role in a corporate reorganization case. Rather, Congress commanded that the debtor and committees of creditors and security holders, supplemented with professionals to the extent the Bankruptcy Court deemed appropriate, should guide a corporate reorganization. The debtor and the committees would negotiate and hopefully fashion a consensual plan that would result from the particular calculus of facts, leverages, and interests available to each constituency. Official committees were intended to play a central role in this process. Substantial discretion resides in the Bankruptcy Court to authorize the number of committees and professionals needed, based on the particular facts of each case. Where a Bankruptcy Court has authorized multiple committees, it has done so usually because the interests of various constituencies are substantially different and cannot be represented by the debtor or a single committee. Those committees, and" }, { "docid": "18578071", "title": "", "text": "equity security holders, as soon as practicable after the bankruptcy petition is filed. 11 U.S.C. § 1102 (1984). . The phrase \"substantial contribution in the case” is derived from Bankruptcy Act §§ 242 and 243. It does not require a contribution that leads to confirmation of a plan, for in many cases, it will be a substantial contribution if the person involved uncovers facts that would lead to a denial of confirmation, such as fraud in connection with the case. H.R.Rep. No. 595, 95th Cong., 1st Sess. 355, reprinted in 1978 U.S. Code Cong. & Ad.News 5787, 6311. Reference to case law interpreting prior sections of the Bankruptcy Act yields general policy statements that are embodied in the Code decisions cited above. . 11 U.S.C. § 327(a) (1984) states: Except as otherwise provided in this section, the trustee, with the court’s approval, may employ one or more attorneys, ... that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee’s duties under this title, (emphasis added) Professionals are compensated pursuant to § 330. The applicant must follow the strict guidelines of Bankruptcy Rule 2014 in being appointed, and Rule 2016 to receive compensation from the estate. This procedure was not followed by the Grubbs’s attorneys. . The proper vehicle would have been the filing of an application to serve as special'counsel to the Committee for the purpose of prosecuting the derivative action. At that time, any conflicts of interest or objections by the parties in interest would have been aired and the terms of employment specifically approved. . The U.S. Trustee for the Northern District of Texas did object to the fee applications of the Grubbs group and of debtor’s counsel only insofar as the latter sought a contingency fee, discussed infra. This is the only district in the Fifth Circuit which serves as a \"pilot district” for the U.S. Trustee program. See 11 U.S.C. §§ 1501 et seq. (1984). The existence of such a program does not relieve court-appointed counsel of their" }, { "docid": "13755271", "title": "", "text": "commencement of the case ordinarily supersedes the receivership, there is an exception to this rule. After notice and hearing, the court may continue the receivership, and relieve the receiver from the duty to comply with the turnover and accounting requirements of section 543(b), if this better serves the interests of the creditors (and the solvent debtor’s equity security holders). 11 U.S.C. § 543(d)(1). Section 543(d)(1) is a modified abstention provision that reinforces the policies set forth in 11 U.S.C. § 305. Dill v. Dime Sav. Bank, FSB (In re Dill), 163 B.R. 221, 225 (E.D.N.Y.1994); In re Constable Plaza Assocs., L.P., 125 B.R. 98,103 (Bankr.S.D.N.Y.1991); In re Pine Lake Village Apartment Co., 17 B.R. 829, 833 (Bankr.S.D.N.Y.1982). The bankruptcy case, however, continues while the receiver remains in possession, and the debt- or’s property remains subject to the bankruptcy court’s jurisdiction . Thus,, despite the continuation of the receivership, the debtor and, if exclusivity has ended, any party in interest can file a plan. Unlike the superseded receiver, where the receiver is continued, the Bankruptcy Code does not expressly provide for the reimbursement and compensation of the receiver or his attorneys. In re Posadas Assocs., 127 B.R. at 280-81. Nevertheless, continuation of the receivership surely implies that the receiver can recover his compensation, reimbursement for expenses and payment of his legal fees from the estate. The first question then is whether the continued receiver, like the trustee or the debtor-in-possession, must obtain a bankruptcy court order approving the retention of his attorney as a condition to the estate having to bear his legal fees. B. Retention of Professionals Under the Bankruptcy Code The Bankruptcy Code provides that the trustee and the official creditors’ committee may employ a professional, including an attorney, with the bankruptcy court’s approval. 11 U.S.C. §§ 327(a), 1103(a). Further, the bankruptcy court cannot award interim or final compensation unless it has authorized the attorney’s employment under sections 327 or 1103. The bankruptcy court must, therefore, formally approve an attorney’s retention prior to the time that the attorney renders services compensable by the estate. In re Robotics Resources R2," }, { "docid": "18541788", "title": "", "text": "allowance for attorney’s fees. Clearly, that argument runs counter to the statutory scheme established by Congress regarding the payment of administrative expenses, including those of professionals engaged by the estate. Clear and specific provision has been made by Congress in § 503(b)(2) to pay debt- or’s counsel, as a cost of administration, for services rendered to a debtor in possession. In re Kahler, 84 B.R. 721, 724 (Bankr.D.Colo.1988). None of the arguments advanced by Debtor in this case persuade this Court to depart from the carefully tailored compensation scheme set forth in §§ 327-331 of the Bankruptcy Code. “An attorney who is authorized by the court to represent a debtor in a case under the Bankruptcy Code is not a creditor of the estate; such attorney’s compensation is governed by the standards expressed in Code § 330(a).” In re Roamer Linen Supply, Inc., 30 B.R. 932, 935 (Bankr.S.D.N.Y.1983) (refusing request for security interest under § 364(d) to secure payment of attorney’s fees); see also In re Darnell, 834 F.2d 1263 (6th Cir.1987) (As a general rule, administrative claims are subordinate to claims that are secured by a perfected lien against the debtor’s property.); In re Swedeland Dev. Group, Inc., 16 F.3d 552, 564 (3rd Cir.1994) (“A debtor has the burden to establish that the holder of the hen to be subordinated has adequate protection.”) Accordingly, the Debtor’s Application so far as it seeks a first-priority hen in Debtor’s real estate in favor of TS & H is hereby DENIED. IT IS SO ORDERED. . The Court recognizes its inherent duty and responsibility to review fee applications sua sponte even if no opposition is raised. In re Busy Beaver Bldg Ctrs, Inc., 19 F.3d 833 (3rd Cir.1994); In re Beyer, 169 B.R. 652 (Bankr.W.D.Tenn.1994). . In pertinent part, 11 U.S.C. § 328(a) provides: The trustee, ... with the court’s approval, may employ or authorize the employment of a professional person under section 327 ... of [title 11], ... on any reasonable terms and conditions of employment including on a retainer, on an hourly basis, or on a contingent fee basis. ." }, { "docid": "18578056", "title": "", "text": "benefits. On its face, the opposition of the Grubbs group inflated the confirmation hearing attorneys’ fees, which were charged to the estate by all officially appointed counsel. Such activity certainly retarded or interrupted the progress of reorganization, especially when viewed in the context of a plan that called for a 100% payout of all debt and a $5.4 million settlement fund to satisfy the claims of equity security holders. Moreover, the mere pendency of the Grubbs group action does not constitute a “substantial contribution” toward the debt- or’s reorganization. According to the record before this court, the action never came close to being ready for trial. No depositions and negligible written discovery occurred. Only two or three court hearings, concerning venue and a plea to the jurisdiction, were held. The legal services rendered to the Grubbs group consisted largely of research and telephone conversations among counsel and their clients. Counsel did not participate in meetings of the Committee, failed to consult with Committee counsel about the derivative action, and never participated in the multi-party negotiations to formulate a plan. It was within the soundly exercised discretion of the bankruptcy court to conclude, faced with tangible efforts of this “minitude” and achievements that were contradicted by other parties in the bankruptcy, that the Grubbs group did not substantially contribute to reorganization. Appellants’ second contention is that the bankruptcy court erred by not valuing the derivative action to the bankruptcy estate. The bankruptcy court did conclude that the value of this derivative lawsuit was minimal in light of the fact that it was not being pursued by the proper party, specifically, the debtor or trustee. Under 11 U.S.C. § 323 (1984), the trustee or debtor in possession is the representative of the estate, and may sue and be sued. If an action belongs to the corporation under Texas law, then the action becomes property of the estate once the bank ruptcy petition is filed. In re Mortgageamerica Corp., 714 F.2d 1266, 1276 (5th Cir.1983). The lawsuit was never abandoned to the Grubbs group to prosecute. Under similar circumstances, such lawsuits have been" }, { "docid": "23445840", "title": "", "text": "originally noticed on December 11, 1985. Following the bankruptcy court’s allowance of $15,000 in interim fees to appellees Bertrand and Van Norman in March, 1986, the Unsecured Creditors’ Committee sought leave to appeal the interim allowance. This Court has entertained the appeal in order to determine the propriety of the Bankruptcy Judge’s actions. III. APPELLEES’ STATUS Appellant, the Unsecured Creditors’ Committee, initially argues that the bankruptcy court erred in awarding attorneys’ fees to Bertrand and Van Norman because they were never employed by the trustee with the approval of the bankruptcy court as required by 11 U.S.C. §§ 327(a), (e) and Bankruptcy Rule 2014. Section 327(a) provides that the trustee must receive the court’s approval before employing an attorney “to represent or assist the trustee in carrying out the trustee’s duties under this title.” Not directed specifically to the trustee’s employment of attorneys, Bankruptcy Rule 2014 provides that the employment of attorneys “shall be made only on application of the trustee or committee, stating the specific facts showing the necessity for the employment, the name of the person to be employed, the reasons for his selection, the professional services to be rendered, any proposed arrangement for compensation, and, to the best of the applicant’s knowledge, all of the person’s connections with the debtor, creditors, or any other party in interest, their respective attorneys and accountants.” The appellees, however, contend that the requirements of section 327(a) do not apply to them as attorneys for the debtor, and that the requisites of Bankruptcy Rule 2014 have been complied with inasmuch as they previously were approved for employment as attorneys for the debtor at the commencement of the bankruptcy proceeding on April 27, 1982. After carefully reviewing the record, it is apparent that the appellees have conducted themselves with little regard for the requirements imposed by the Bankruptcy Code and the strong policies underlying it. The ambiguity with which appellees have characterized the posture in which they have purportedly performed services is well demonstrated by Paragraph 7 of their “Application for Interim Fees as Attorney for Debtor”: All of the services for which" }, { "docid": "4728207", "title": "", "text": "does not provide a source of payment nor a guarantee of payment. The application is a tool for the court and is based upon a set of instructions from the Rule. It is the Bankruptcy Code that provides the applicable law used by the court to make a determination of application approval. There are no sections of the Bankruptcy Code that specifically premise the award of professional fees on the existence of an estate at the time the application is filed. No Code provision moots fee applications filed after a case is dismissed. Timing, as it relates to applications filed after case dismissal, is not one of the Code’s elements that controls the approval of professional fees. Bankruptcy Rule 2016(a)’s phrase, “from the estate,” should not be the bright line for disapproving fee requests. In some districts, local rules eliminate Bankruptcy Rule 2016(a)’s application process when the compensation sought is less than a certain dollar amount. See In re Fricker, 131 B.R. at 936, n. 1. Such a rule is proposed for the District of South Dakota and, if implemented, will state that absent an objection, debtor’s counsel may be compensated without filing a fee application required by Bankruptcy Rule 2016(a) provided the total amount of compensation is less than a certain dollar amount. Attorneys subject to such a local rule would avoid the “case dismissed-application moot” objection since “from the estate” only exists in Bankruptcy Rule 2016(a). This Court believes that the timing of a fee application, in situations similar to the case at hand, is not a controlling factor that should fatally flaw the request. The application is a request for court approval. The court can approve the request for compensation and reimbursement of expenses even though the case was previously dismissed. “There is no definite time established for the submission of an application for compensation. Such an application may, therefore, be submitted after the fact of payment has been accomplished.” In re Fricker, 131 B.R. at 940. EXCEPTION TO 11 U.S.C. § 349 EFFECT OF DISMISSAL 11 U.S.C. § 349 reserves to the court “the power to" }, { "docid": "13846132", "title": "", "text": "the Debtor to retain Abrams regardless of whether he is disinterested. Accordingly, the Court authorizes the retention of Abrams as a professional. Because Abrams is a professional, his compensation is also subject to court approval. 26. Additionally, regardless of whether Abrams is a court approved professional, Section 105(a) of the Bankruptcy Code allows the Court to review the salaries of officers of the debtor. See In re Zerodec Mega Corporation, 39 B.R. 932, 934 (Bankr.E.D.Pa.1984). 27. To date, Abrams has received $60,-000 for services rendered. The Court, however, has not had the opportunity to review the nature and extent of the services performed. Abrams shall, therefore, file a fee application for services rendered from the date the Petition for Relief was filed. Additionally, Abrams shall hold the $60,000 received as a retainer until the Court has ruled on any fee application submitted. In the event that the retainer exceeds any fees awarded, Abrams will have to disgorge the difference to the estate. Abrams shall not continue to draw a monthly salary from the Debtor. 28. The Court further finds that Rudnicki and Jaskowiak are employees of the Debtor and are not professionals for the purpose of Section 327 of the Bankruptcy Code because they do not play a central role in the administration of the estate. Therefore, their employment and compensation are not subject to court approval. 29. Any conclusion of law may be considered a finding of fact to the extent appropriate. Conclusion In summary, the Court finds that the Movants have proved by clear and convincing evidence that the appointment of a limited trustee is in the best interests of the creditors and the estate. Pinellas County, Florida has also proven by clear and convincing evidence that Abrams is a professional for the purpose of Section 327 of the Bankruptcy Code and his compensation is subject to court approval. An Order will be entered contemporaneously with and in accordance with the Court’s Findings of Fact and Conclusions of Law. . The Official Unsecured Creditors’ Committee, Great American Management Group, Inc., Great American Industrial Group, Inc. and the U.S." }, { "docid": "18578060", "title": "", "text": "appointed professionals, cannot be compensated. Since the Grubbs group eschewed compliance with the Code and Rules, the court was well within its discretion in denying them fees based on the competent representation afforded to all shareholders by the Committee. This is reinforced by the fact that there were no objections to the modest fees requested by attorneys for the Committee and no dispute over the statement by counsel for the Committee that they “followed and participated in every way we thought was necessary in watch-dogging the debtor.” The bankruptcy court, 49 B.R. 467, found this testimony credible and denied fees to the Grubbs group in part because of duplication of services. There being support in the record for this conclusion and no evidence that services rendered by Grubbs’ attorneys were actually different from or more beneficial than those rendered to the Committee, Grubbs’s argument is rejected. We conclude that the District Court acted properly in affirming the denial of the Grubbs group’s attorneys’ fee applications. IV. FEE APPLICATIONS OF DEBTOR’S ATTORNEYS Cross-appeals were filed concerning the bankruptcy court’s final award of fees and expenses to Creel & Atwood in the amount of $224,226 and Jack Bryant for $36,906. The Grubbs group contests these awards as too high, while debtor’s counsel claim they should have received a bonus or contingency award for their successful efforts toward reorganization. All but one of these contentions lack merit. Fees of debtor’s counsel should be denied in toto, according to the Grubbs group, because of a conflict of interest, a contingency fee arrangement, and the request by debtor’s counsel that the court approve a fee-splitting arrangement. As will be seen in the following discussion, these are serious allegations, even if they were not substantiated against counsel in this case, and a hearing was certainly appropriate to determine their validity. It is surprising indeed that these allegations were made only by counsel for an independent group of shareholders' who were not guaranteed payment of their fees through the bankruptcy estate. Too frequently, court-appointed counsel for debtor and the official creditor committees’ interests in a case, sharing" }, { "docid": "18578052", "title": "", "text": "of America, 544 F.2d 1291, 1298 (5th Cir.), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977). III. THE GRUBBS GROUP FEE APPLICATION Grubbs’s attorneys filed fee applications seeking from this bankruptcy estate an allowance of $231,947.50 for their services. The Committee, the debtor and the United States Trustee for the Northern District of Texas unanimously contested the applications. After a hearing, the bankruptcy court refused to award fees because it could not “find that [the Grubbs group attorneys’] actions made a ‘substantial contribution’ to the proceeding.” The court based this finding on several factors. First, an equity security holders’ Committee, appointed by the bankruptcy court, officially represented all shareholders of the estate. Therefore, any work performed by the attorneys for the Grubbs shareholder group after the formation of the committee had resulted in a needless duplication of time and effort. Second, the bankruptcy court found that the shareholder suit was not handled in the most expeditious and efficient manner and was motivated by Grubbs’s personal interest in ANB and not for the benefit of the Chapter 11 estate. Third, the bankruptcy court found that the derivative action was merit-less because the pending state lawsuit became property of the estate once the bankruptcy petition was filed. As such, the lawsuit could have been dismissed for lack of a proper party plaintiff, i.e., the debtor, and therefore had little value to the bankruptcy estate. The Grubbs group attorneys contend that the bankruptcy court erred for three reasons. First, they believe their derivative action was the real motivating factor behind the filing and confirmation of a successful plan, hence its pursuit made a substantial contribution to the estate. Second, the bankruptcy court erred legally because its opinion assumed a duplication of services without comparing the Grubbs attorneys’ activities with those of the court-appointed Committee. Finally, the Grubbs group argues that the bankruptcy court erred as a matter of law because it did not “[opine] as to the value of the derivative action.” The applicable sections of the Bankruptcy Code provide that the court may award the actual, necessary expenses" }, { "docid": "18578059", "title": "", "text": "has stated that the bankruptcy statute and rules require court approval of an attorney for the debtor’s estate and contemplate that such approval will be required in advance of such employment and only after the showing now required by statute. In re Triangle Chemicals, Inc., 697 F.2d 1280, 1289 (5th Cir.1983). We see no reason to modify this rule. Were the Grubbs group fee applications to be approved, the purpose of the Bankruptcy Code’s scheme for compensation of professionals would be thwarted. The Grubbs group, despite being informed by debtor’s attorney of the requirement to secure formal retention in order thereafter to seek compensation, failed to comply with the strict provisions of the Code and Rules. They never met with or advised the official Committee, much less the court of their activities until the objections to confirmation and filing of a quarter-million-dollar fee application. The conduct of activities parallel to but not coordinated with those of an official committee, wholly outside of supervision by the bankruptcy court and scrutiny by the debtor and other officially appointed professionals, cannot be compensated. Since the Grubbs group eschewed compliance with the Code and Rules, the court was well within its discretion in denying them fees based on the competent representation afforded to all shareholders by the Committee. This is reinforced by the fact that there were no objections to the modest fees requested by attorneys for the Committee and no dispute over the statement by counsel for the Committee that they “followed and participated in every way we thought was necessary in watch-dogging the debtor.” The bankruptcy court, 49 B.R. 467, found this testimony credible and denied fees to the Grubbs group in part because of duplication of services. There being support in the record for this conclusion and no evidence that services rendered by Grubbs’ attorneys were actually different from or more beneficial than those rendered to the Committee, Grubbs’s argument is rejected. We conclude that the District Court acted properly in affirming the denial of the Grubbs group’s attorneys’ fee applications. IV. FEE APPLICATIONS OF DEBTOR’S ATTORNEYS Cross-appeals were filed concerning" }, { "docid": "18578051", "title": "", "text": "dismissed with prejudice. The Grubbs group objected to confirmation of the plan by attacking the bankruptcy court’s power to settle the derivative lawsuit over their opposition. The court overruled this objection at the close of the confirmation hearing, confirmed the plan, and the three lawsuits were dismissed shortly thereafter. The order of confirmation has not been appealed. II. STANDARD OF REVIEW This court reviews the bankruptcy court’s findings of fact under the clearly erroneous standard, see Bankr.R.P. 8013; Richmond Leasing Co. v. Capital Bank, N.A., 762 F.2d 1303, 1308 (5th Cir.1985), but the bankruptcy court’s conclusions of law are subject to de novo review. Richmond Leasing Co., 762 F.2d at 1307. This court is mindful of the fact that, absent such errors, “district courts and bankruptcy judges have broad discretion in determining the amount of attorneys’ fees to award as compensation for services performed in connection with bankruptcy proceedings, and their exercise of that discretion will not be disturbed by an appellate court absent a showing that it was abused.” In re First Colonial Corp. of America, 544 F.2d 1291, 1298 (5th Cir.), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977). III. THE GRUBBS GROUP FEE APPLICATION Grubbs’s attorneys filed fee applications seeking from this bankruptcy estate an allowance of $231,947.50 for their services. The Committee, the debtor and the United States Trustee for the Northern District of Texas unanimously contested the applications. After a hearing, the bankruptcy court refused to award fees because it could not “find that [the Grubbs group attorneys’] actions made a ‘substantial contribution’ to the proceeding.” The court based this finding on several factors. First, an equity security holders’ Committee, appointed by the bankruptcy court, officially represented all shareholders of the estate. Therefore, any work performed by the attorneys for the Grubbs shareholder group after the formation of the committee had resulted in a needless duplication of time and effort. Second, the bankruptcy court found that the shareholder suit was not handled in the most expeditious and efficient manner and was motivated by Grubbs’s personal interest in ANB and not for" }, { "docid": "12738973", "title": "", "text": "the \"community rate,” VL is comfortable seeking the somewhat less controversial \"nonbankruptcy client rale.” . We thus know that the bankruptcy court relied at least in part on the notion that enhancement could not be awarded where the results might be attributable not just to the efforts of the professional seeking the adjustment but also to the efforts of other professionals (who may or may not be making such a request). We do not know whether the district court agreed with this analysis. We only know that the district court did not disagree to the point of finding reversible error. . The Fifth Circuit in Consolidated Banc-shares lamented at what the court perceived to be a tendency for bankruptcy professionals to mutually support one another's fee applications, rather than to critically evaluate the fees sought by other professionals. Here’s what Judge Jones, writing for the court, had to say: Too frequently, court-appointed counsel for debtor and the official creditor committees' interests in a case, sharing the mutual goal of securing approval for their fees, enter into a conspiracy of silence with regard to contesting each other's fee applications (one bankruptcy judge characterized this process as a \"massive backscratching exercise\"). This is a violation of their duties as fiduciaries not only to their specific clients but to the interests of the debtor’s estate. In re Arlan’s Department Stores, 615 F.2d 925, 941 (2d Cir.1979). The numerous limitations imposed by the Bankruptcy Code upon compensation of court-appointed counsel, cited passim, are designed to insure the highest standards of ethical conduct and minimize the overhead expenses which can easily deplete a debtor's estate. Vigilance is required by and among court-appointed counsel in particular to enforce the standards of the Code. If such counsel would scrutinize each other’s fee applications with the dedication that they pour into preparing their own, the compensation scheme of the Code would be fully vindicated. At the least, they should inform the court in writing, as and when interim fee applications for other parties are filed, that they have reviewed such applications carefully, indicate whether or not such applications" }, { "docid": "18578072", "title": "", "text": "the trustee’s duties under this title, (emphasis added) Professionals are compensated pursuant to § 330. The applicant must follow the strict guidelines of Bankruptcy Rule 2014 in being appointed, and Rule 2016 to receive compensation from the estate. This procedure was not followed by the Grubbs’s attorneys. . The proper vehicle would have been the filing of an application to serve as special'counsel to the Committee for the purpose of prosecuting the derivative action. At that time, any conflicts of interest or objections by the parties in interest would have been aired and the terms of employment specifically approved. . The U.S. Trustee for the Northern District of Texas did object to the fee applications of the Grubbs group and of debtor’s counsel only insofar as the latter sought a contingency fee, discussed infra. This is the only district in the Fifth Circuit which serves as a \"pilot district” for the U.S. Trustee program. See 11 U.S.C. §§ 1501 et seq. (1984). The existence of such a program does not relieve court-appointed counsel of their independent duty to help control administrative costs of bankruptcy. . The standards for the employment of professional persons are strict, for Congress has determined that strict standards are necessary in light of the unique nature of the bankruptcy process. In re Cropper Co., 35 B.R. 625, 629 (Bankr.M.D.Ga.1983). \"[Professionals engaged in the conduct of a bankruptcy case should be free of the slightest personal interest which might be reflected in their decisions concerning matters of the debtor’s estate or which might impair the high degree of impartiality and detached judgment expected of them during the course of administration\" In re Philadelphia Athletic Club, Inc., 20 B.R. 328, 334 (E.D.Pa.1982) (quoting 1 Collier Bankruptcy Manual § 101.13 (1981)). . The court should be guided by the principle that court-appointed attorneys are officers of the court, and fiduciaries, see In re Bohack Corp., 607 F.2d 258, 264 (2d Cir.1979), and the court must strictly apply the equitable principle that a fiduciary can only serve one master. Woods v. City Nat'l. Bank, 312 U.S. at 269, 61 S.Ct." }, { "docid": "16456224", "title": "", "text": "Almost immediately after her appointment as trustee, Carson employed Latino to operate and manage the station under a contract “drafted by Young on behalf of Latino, after consultation with and concurrence of the Creditors’ Committee” of the instant Debtor. Latino’s subsequent dismissal as station manager by Carson, due to a deteriorating relationship with Carson, appears to have closely followed, if not paralleled, the deterioration and ultimate termination of the relationship between Latino and Young. Carson employed Latino at the suggestion of Young without notice to creditors, or the Court, and opportunity for a hearing, and without complying with 11 U.S.C. § 327 of the Bankruptcy Code or Rule 2014 of the Bankruptcy Rules. Thus, the existence of and circumstances surrounding Latino’s employment, Latino’s connections with Edward Romero, the Debtor, and Young, as well as any compensation arrangements, were not fully disclosed to creditors, interested parties, or this Court until the filing of an application for fees. This case graphically demonstrates the congressional wisdom in requiring prior Court approval of professional persons with the attendant notice to creditors. Had notice been given and prior approval sought in this case, both the latent “entanglements” between Young and the three bankruptcy estates and the extant appearance of impropriety would have been brought out in the open during the hearing and dealt with prior to the performance of services for which Latino now seeks a fee. See generally, In re Carolina Sales Cory., 45 B.R. 750, 753 (Bankr.E.D.N.C.1985). Latino requests compensation under 11 U.S.C. § 503(b)(1)(A). This Court has found that Latino is a professional person, thus subjecting it to the requirements of 11 U.S.C. §§ 327, 330(a) and 503(b)(2) instead. The record reflects that these requirements were not met. Assuming, arguendo, that Latino was not a “professional person” and could correctly apply for an allowance of an administrative expense under 11 U.S.C. § 503(b)(1)(A), Latino has the burden of proving that the expenses were both actual and necessary to preserve the estate. Matter of Patch Graphics, 58 B.R. 743, 745 (Bankr.W.D.Wis.1986). Because bankruptcy law demands equality of distribution absent a compelling justification for" }, { "docid": "18578058", "title": "", "text": "dismissed, Mitchell Escavators, Inc. v. Mitchell, 734 F.2d 129, 132 (2d Cir.1984). Moreover, a shareholder can maintain a derivative suit only when the complaint alleges that the shareholder demanded the trustee to bring suit. See Kemper v. American Broadcasting Co., 365 F.Supp. 1272 (S.D.Ohio 1973). “Only demonstrable futility or the actual refusal of a demand ... can abrogate the Rule 23.1 prerequisite of such demand for prosecution of a corporate cause of action.” Id. at 1274. The record does not support a finding that the Grubbs group asked the debtor to take over its derivative action once the bankruptcy was filed. Since the debtor has never abandoned the cause of action, the bankruptcy court correctly found the lawsuit was of minimal value because it could be dismissed. Inherent in the bankruptcy court’s finding that the efforts of the Grubbs group .were duplicative of the equity security holders’ committee is the basic premise of the Bankruptcy Code that the bankruptcy court has broad supervisory powers over professional persons who render services for the estate. This Circuit has stated that the bankruptcy statute and rules require court approval of an attorney for the debtor’s estate and contemplate that such approval will be required in advance of such employment and only after the showing now required by statute. In re Triangle Chemicals, Inc., 697 F.2d 1280, 1289 (5th Cir.1983). We see no reason to modify this rule. Were the Grubbs group fee applications to be approved, the purpose of the Bankruptcy Code’s scheme for compensation of professionals would be thwarted. The Grubbs group, despite being informed by debtor’s attorney of the requirement to secure formal retention in order thereafter to seek compensation, failed to comply with the strict provisions of the Code and Rules. They never met with or advised the official Committee, much less the court of their activities until the objections to confirmation and filing of a quarter-million-dollar fee application. The conduct of activities parallel to but not coordinated with those of an official committee, wholly outside of supervision by the bankruptcy court and scrutiny by the debtor and other officially" } ]

[ { "docid": "13166555", "title": "", "text": "MEMORANDUM OPINION LAMBERTH, District Judge. This matter returns to the Court on plaintiff Ellen W. Schrecker’s and defendant United States Department of Justice’s third set of cross-motions for summary judgment. Based upon the parties’ motions in support of and in opposition to these motions, the entire record thereto, and the applicable law, plaintiffs motion will be denied and defendant’s motion will be granted. I. Background Plaintiff Ellen Schrecker, a history professor and author, commenced this action under the Freedom of Information Act, 5 U.S.C. § 552, (“FOIA”), seeking documents relating to Gerhart Eisler and Clinton Jencks, who were subjects of Justice Department investigations during the McCarthy era. Eisler was a German communist who lived in the United States from the late 1930s or early 1940s until 1949. Jencks was an official of the Mine, Mill and Smelter Workers International Union in New Mexico who was indicted by the Justice Department for violations of the Taft-Hartley Act. A detailed history of this litigation appears in this Court’s prior opinion. See Schrecker v. United States Dep’t of Justice, 14 F.Supp.2d 111, 113 (D.D.C.1998)(denying defendant’s motion for summary judgment; granting and denying in part plaintiffs motion for summary judgment). After two rounds of briefing on dispositive motions, this Court ordered the defendant to reprocess all information withheld in response to plaintiffs FOIA request. Subsequently, on August 28, 1998, pursuant to a Stipulation and Scheduling Order, the parties agreed’ that after reprocessing was completed, and due to the volume of documents involved in this case, plaintiff would select 100 sample pages for which defendant would prepare Vaughn indices. Accordingly, the present chapter in this protracted litigation concerns whether the defendant’s withhold-ings from these 100 sample pages are properly justified. II. The Freedom of Information Act & Standard of Review The Freedom of Information Act, 5 U.S.C. § 552, as amended by the Freedom of Information Reform Act of 1986, §§ 1801-04 of Pub.L. No. 99-570, 100 Stat. 3207, 3207-48 (1986), provides citizens a statutory right of access to government information. As its basic premise, the Act establishes that government agency records should be accessible" } ]

[ { "docid": "1462938", "title": "", "text": "additional released documents to Plaintiff in a piecemeal fashion — i.e., the FBI may continue to release the documents as they are reviewed and processed by the relevant agencies. . As will be discussed below, the FBI later explains that the bates stamped numbers used in the preliminary Vaughn index do not necessarily correspond with the bates stamped numbers used in Hardy's second declaration. See infra pp. 198-200. Here, it is apparent upon review of the pages at issue that the FBI in fact meant pages 77, 78, and 79 of the preliminary Vaughn index, as page 80 does not indicate that any material has been withheld pursuant to FOIA Exemption 1. See Prelim. Vaughn Index, \"S-77 through S-79.” . The Court notes that, in addition to those documents noted by Plaintiff, the FBI also indicates that it discovered, upon its own review, that an additional \"12 pages were [also] unintentionally omitted from its Vaughn index.” Fourth Hardy Decl. ¶ 13. . By contrast, so long as an agency amply explains its reasoning, an agency may redact the identity of an individual under FOIA Exemptions 1 and 7(d) regardless of whether the individual is alive. See Schrecker v. DOJ, 14 F.Supp.2d 111, 118 (D.D.C. 1998); see also Schrecker v. DOJ, 254 F.3d 162, 166 (D.C.Cir. 2001)." }, { "docid": "13062092", "title": "", "text": "Opinion for the Court filed by Circuit Judge GINSBURG. GINSBURG, Circuit Judge: Ellen Schrecker appeals the judgment of the district court rejecting her claims that the Federal Bureau of Investigation violated the Freedom of Information Act, 5 U.S.C. § 552, by failing to conduct an adequate search for information responsive to her FOIA request, and that both the FBI and the National Labor Relations Board violated that Act by improperly withholding responsive information they had located. See Schrecker v. U.S. Dep’t of Justice, 74 F.Supp.2d 26 (D.D.C.1999). We reverse with respect both to the adequacy of the search and to one aspect of Schrecker’s claim regarding Exemption 7(C) of the FOIA. With respect to her other claims, we affirm. I. Background In October 1988 Schrecker filed a FOIA request seeking information regarding Gerhard Eisler and Clinton Jencks, suspected communists whom the FBI had investigated in the 1940s and 1950s. The FBI released some documents to Schrecker and withheld others pursuant to various exemptions to the FOIA. In 1994 Schrecker filed a new request for the same information and, less than two months later, initiated this lawsuit. In 1998 the district court directed the FBI to reprocess all responsive material. Schrecker v. U.S. Dep’t of Justice, 14F.Supp.2d 111, 117 (D.D.C.1998) (“Under the FBI’s own admission, a ‘significant portion,’ of its withholdings may have been inappropriate.... [T]his court orders that the defendant reprocess all withhold-ings and submit appropriate affidavits regarding any future withholdings”). After reprocessing the responsive material, the Government prepared a Vaughn index stating, with respect to a sample of the disputed material, its basis for withholding each item. Subsequently, the district court granted the Government’s motion for summary judgment. II. Analysis Upon appeal Schrecker argues that the Government conducted an inadequate search for documents and improperly withheld information pursuant to a number of exemptions to the FOIA. A. Adequacy of Search Schrecker argues the FBI conducted an inadequate search because it did not search for “ticklers.” As this court explained in Campbell v. United States, 164 F.3d 20, 27 n. 1 (1998): A “tickler” is a duplicate file containing copies" }, { "docid": "14566936", "title": "", "text": "*2 (S.D.N.Y.1984); cf. Schrecker v. United States Dep’t of Justice, 14 F.Supp.2d 111, 119 (D.D.C.1998). Moreover, the FBI appears in many cases to have searched EL-SUR without being asked to do so. See Hart v. FBI, 1996 WL 403016 at *2 (7th Cir.1996); Marks v. United States, 578 F.2d 261, 263 (9th Cir.1978); Canning v. United States Dep’t of Justice, 848 F.Supp. 1037, 1050 (D.D.C.1994). The Department also asserts that the existence of ticklers in its archives is “speculative” because ticklers are not generally preserved for posterity and also might not contain information distinct from what the FBI already found within the CRS. It is true that Campbell has claimed only that a tickler existed at one time, not that it exists today or that it contains unique information. Yet in any FOIA request, the existence of responsive documents is somewhat “speculative” until the agency has finished looking for them. As the relevance of some records may be more speculative than others, the proper inquiry is whether the requesting party has established a sufficient predicate to justify searching for a particular type of record. Cf. Meeropol v. Meese, 790 F.2d 942, 953 (D.C.Cir.1986). Here, the FBI does not deny that such a predicate exists, rendering its “speculation” claim irrelevant. Cf. Oglesby v. United States Dep’t of the Army, 79 F.3d 1172, 1185 (D.C.Cir.1996); Schrecker, 14 F.Supp.2d at 119. For these reasons we conclude that the district court erred in finding that an adequate search had been made, and remand the ease so that the FBI can be afforded an opportunity to search for tickler and ELSUR records responsive to Campbell’s FOIA request, and to proceed as the results of such searches require. B. Exemption 1 (National Security). FOIA authorizes an agency to withhold requested material if it is “properly classified” in the “interest of national defense or foreign policy” pursuant to an applicable executive order. 5 U.S.C. § 552(b)(1). In the instant case, the FBI invoked the national security exemption to redact documents and withhold at least two entire documents. The sole justification in the record for the FBI’s classification" }, { "docid": "2187891", "title": "", "text": "complaint about the alleged inadequacy of the search. Third, Hodge contends that the FBI improperly asserted Exemption 3, Exemption 7(C), and Exemption 7(D) to withhold various documents. Exemption 3 covers information that is protected from disclosure by another statute. See 5 U.S.C. § 552(b)(3). In this case, the FBI withheld information that was related to grand jury proceedings and protected by Rule 6(e) of the Federal Rules of Criminal Procedure. Rule 6(e) applies if the disclosed material would “tend to reveal some secret aspect of the grand jury’s investigation,” including “the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation,” or “the deliberations or questions of jurors.” Senate of the Commonwealth of Puerto Rico v. Dept. of Justice, 823 F.2d 574, 582 (D.C.Cir.1987) (citations and internal quotation marks omitted). Here, the FBI explained that the relevant material “documents the identities of individuals who were either the recipients of a Federal Grand Jury Subpoena and/or testified before a Federal Grand Jury.” J.A. 46. Hodge does not contest the accuracy of this claim. Because the FBI’s explanation shows that the material is covered by Rule 6(e), the material is in turn covered by FOIA Exemption 3. Exemption 7(C) applies to “records or information compiled for law enforcement purposes,” if disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). In this case, the FBI asserted Exemption 7(C) to protect private information of various investigators, witnesses, informants, and suspects. Individuals who fall into these groups have a cognizable privacy interest under the exemption. See Schrecker v. Dept. of Justice, 349 F.3d 657, 661 (D.C.Cir.2003). Moreover, we have recognized that private citizens — such as witnesses, informants, and suspects — have particularly strong privacy interests. Martin v. Dept. of Justice, 488 F.3d 446, 457 (D.C.Cir.2007). As the Supreme Court has explained, the “disclosure of records regarding private citizens, identifiable by name, is not what the framers of the FOIA had in mind.” Dept, of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 765, 109 S.Ct. 1468," }, { "docid": "16033488", "title": "", "text": "because the storage of the logbook was controlled by other persons or by internal procedures, such an inquiry was required. Id. The implication is not that the agency must contact former employees in order to comply with the FOIA but rather that, in most instances, it is not necessary for an agency to contact former employees to see if they know where records responsive to a FOIA request are located for the search to be considered adequate. Given the age of the investigation in this case and the prospect that some of these retired agents may be difficult to contact or deceased, it is unreasonable to impose this requirement on the agency. See Schrecker v. United States Dep’t of Justice, 74 F.Supp.2d 26, 86 (D.D.C.1999). The Court therefore concludes that defendant’s search was adequate and grants summary judgment for defendant on this issue. B. Withholding of the ELSUR Files With respect to the ELSUR files, defendant found three ELSUR logs and eight 90-minute cassette tapes responsive to plaintiffs FOIA request. Defendant has withheld in its entirely one of the ELSUR logs — the transcript of an electronically monitored conversation — and has released the other two logs to the plaintiff in redacted form — the notes of the FBI agents monitoring the conversation. Of the audio cassettes, one has been copied and released to the plaintiff, while the other seven have been withheld in their entirely. The entirely withheld ELSUR log is the transcript of the conversation recorded on these seven withheld tapes. Defendant argues that these records may be released in redacted form or withheld in their entirety under Exemptions 2, 7(C), 7(D) and 7(F), and that all reasonably segregable information has been released to plaintiff. Plaintiff contends that defendant has improperly invoked these exemptions and that there may be additional segregable information that could be disclosed. With respect to documents withheld under Exemptions 2, 7(C) and 7(D), plaintiff repeats the arguments previously made to and rejected by the Court in its August 30, 1999 Opinion. See Blanton v. United States Department of Justice, 63 F.Supp.2d at 43-49. Plaintiff" }, { "docid": "15248069", "title": "", "text": "of the Litigation Unit, Freedom of Information-Privacy Acts Section at FBI Headquarters. See Schrecker, 217 F.Supp.2d at 34-38. The court found that the Government’s search for responsive “ticklers” satisfied the Government’s duty under FOIA. Id. at 34-35. With regard to Exemption 7(C), the court found that the Government had investigated the life status of the individuals whose names were withheld, using the following clues and sources: Who Was Who; the 100-year rule; previous FOIA requests; “internal sources”; and SSDI searches where the individual’s social security number appeared in the responsive records. Id. at 37. The District Court rejected Schrecker’s argument that the FBI should use name-based searching of the SSDI when social security numbers are not available, finding that a social security number is necessary to verify that an individual listed in the database is the same individual appearing in the responsive document. The court found that it would be unduly burdensome for the Government to search unresponsive files for the social security number of every individual mentioned in a responsive document. Id. at 38. The District Court accordingly held that the Government had done all it was required to do in investigating whether the individuals whose personal information was withheld were dead. The court also concluded that the Government had appropriately balanced privacy and public interests in withholding the information under Exemption 7(C) and, therefore, held that the Government was entitled to summary judgment. Id. at 38-39. Schrecker now appeals the District Court’s decision as to the Exemption 7(C) issues. Public Citizen, Inc., and seven other organizations (“Ami-ci”) were granted leave by the court to file a joint amicus brief in support of Schrecker. II. Analysis A. FOIA Exemption 7(C) FOIA Exemption 7(C) provides, in relevant part, that an agency may withhold “records or information compiled for law enforcement purposes” to the extent that their production “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C) (1996). Exemption 7(C) requires the agency and the reviewing court to weigh the public interest in the release of information against the privacy interest in nondisclosure. See" }, { "docid": "15248068", "title": "", "text": "it was unclear as to whether it also included the Social Security Death Index (“SSDI”), a privately maintained database using Social Security Administration data. Id. at 166-67. We held that, “[w]ithout confirmation that the Government took certain basic steps to ascertain whether an individual was dead or alive, we are unable to say whether the Government reasonably balanced the interests in personal privacy against the public interest in release of the information at issue.” Id. at 167. We reversed the District Court’s grant of summary judgment on the Exemption 7(C) withholdings and remanded the case for further proceedings. The court instructed that, on remand, the Government should be permitted to document the “other readily available information” upon which it relied. The District Court then could properly evaluate whether the Government “did all it should have done” and, on this basis, determine whether the Exemption 7(C) withholding was justified. Id. On remand, the District Court again granted summary judgment for the Government, relying in significant part on two declarations from Scott A. Hodes, then Acting Chief of the Litigation Unit, Freedom of Information-Privacy Acts Section at FBI Headquarters. See Schrecker, 217 F.Supp.2d at 34-38. The court found that the Government’s search for responsive “ticklers” satisfied the Government’s duty under FOIA. Id. at 34-35. With regard to Exemption 7(C), the court found that the Government had investigated the life status of the individuals whose names were withheld, using the following clues and sources: Who Was Who; the 100-year rule; previous FOIA requests; “internal sources”; and SSDI searches where the individual’s social security number appeared in the responsive records. Id. at 37. The District Court rejected Schrecker’s argument that the FBI should use name-based searching of the SSDI when social security numbers are not available, finding that a social security number is necessary to verify that an individual listed in the database is the same individual appearing in the responsive document. The court found that it would be unduly burdensome for the Government to search unresponsive files for the social security number of every individual mentioned in a responsive document. Id. at 38." }, { "docid": "13062094", "title": "", "text": "of documents, usually kept by a supervisor. Such files can be of interest to a FOIA requester because they could contain documents that failed to survive in other filing systems or that include unique annotations. The Government acknowledges both that there were at one time ticklers for certain FBI files responsive to Schrecker’s request and that it did not search for them, but it argues that it did not need to do so because ticklers are not indexed to the FBI’s Central Records System. We are not a little dismayed by the Government’s position, for we rejected this self-same argument in Campbell. Id. at 28 (holding that where FOIA request includes ticklers and agency’s initial search reveals that responsive ticklers existed at one time, then a search for ticklers is presumptively necessary). As the Government must know, this panel is bound not only by good sense but also by circuit law to reject this argument once again. See, e.g., Brewster v. Commissioner of Internal Revenue, 607 F.2d 1369, 1373-74 (D.C.Cir.1979) (panels bound to follow circuit precedent until en banc court or Supreme Court overrules that precedent). Next the Government argues it need not search for the ticklers responsive to Schrecker’s request because, under FBI policy during the time it investigated Eis-ler and Jencks, ticklers were to be retained for only 60 days. The Government acknowledges that the FBI granted requests to retain some ticklers past the 60 day mark, but it explains that even those documents were retained “with the understanding that they will be disposed of as soon as they no longer serve a useful purpose.” See, e.g., Memoranda to Mr. Boardman from A.H. Belmont re: Retention of Ticklers, Domestic Intelligence Division, dated August 5 and November 9, 1955. Schrecker points out, however, that there is no evidence the reprieved documents were ever destroyed despite the FBI’s practice of “recording the destruction of records.” The Government does not rebut this argument and, without such evidence, the standard “no longer serving] a useful purpose” is simply too vague to obviate the need for a search. Under that standard, the ticklers" }, { "docid": "18067608", "title": "", "text": "limit its search to only one record system if there are others that are likely to turn up the information requested. Id. at 892. The adequacy of any FOIA search is measured by a standard of “reasonableness” and is dependent on the circumstances of the case. Schrecker v. United States Dep’t of Justice, 349 F.3d 657, 663 (D.C.Cir.2003). The adequacy of a search is not determined by its results, but by the method of the search itself. Weisberg v. United States Dep’t of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984). See also Raulerson v. Ashcroft, 271 F.Supp.2d 17 (D.D.C.2002) (“[I]f [the agency] discovers that relevant information might exist in another set of files or a separate record system, the agency must look at those sources as well.”). If the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper. Campbell v. United States Dep’t of Justice, 164 F.3d 20, 27 (D.C.Cir.1998). To show reasonableness at the summary judgment phase and to allow the court to determine if the search was adequate, an agency must provide, “[a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.” Oglesby, 920 F.2d at 68. III. ANALYSIS As noted, Plaintiff acknowledges that Defendant has provided “significant relief’ as this litigation has progressed. Nonetheless, he argues that the FBI’s prelawsuit search was inadequate as a matter of law, and that the FBI’s production of responsive documents still fails to comply with FOIA requirements. A. Defendant’s Pre-Lawsuit Search for Responsive Documents Was Inadequate. In his Motion for Partial Summary Judgment, Plaintiff argues that Defendant’s pre-lawsuit search for documents responsive to his FOIA request was inadequate because despite his broad request “for any records about him,” and the exis tence of nine different sources of searchable records, the FBI’s only pre-lawsuit search was of one such source — the Universal Index (“UNI”). Pl.’s Mot. at 21-23. Defendant responds by claiming that Plaintiffs request was general, and under Campbell, “[w]hen" }, { "docid": "13062093", "title": "", "text": "same information and, less than two months later, initiated this lawsuit. In 1998 the district court directed the FBI to reprocess all responsive material. Schrecker v. U.S. Dep’t of Justice, 14F.Supp.2d 111, 117 (D.D.C.1998) (“Under the FBI’s own admission, a ‘significant portion,’ of its withholdings may have been inappropriate.... [T]his court orders that the defendant reprocess all withhold-ings and submit appropriate affidavits regarding any future withholdings”). After reprocessing the responsive material, the Government prepared a Vaughn index stating, with respect to a sample of the disputed material, its basis for withholding each item. Subsequently, the district court granted the Government’s motion for summary judgment. II. Analysis Upon appeal Schrecker argues that the Government conducted an inadequate search for documents and improperly withheld information pursuant to a number of exemptions to the FOIA. A. Adequacy of Search Schrecker argues the FBI conducted an inadequate search because it did not search for “ticklers.” As this court explained in Campbell v. United States, 164 F.3d 20, 27 n. 1 (1998): A “tickler” is a duplicate file containing copies of documents, usually kept by a supervisor. Such files can be of interest to a FOIA requester because they could contain documents that failed to survive in other filing systems or that include unique annotations. The Government acknowledges both that there were at one time ticklers for certain FBI files responsive to Schrecker’s request and that it did not search for them, but it argues that it did not need to do so because ticklers are not indexed to the FBI’s Central Records System. We are not a little dismayed by the Government’s position, for we rejected this self-same argument in Campbell. Id. at 28 (holding that where FOIA request includes ticklers and agency’s initial search reveals that responsive ticklers existed at one time, then a search for ticklers is presumptively necessary). As the Government must know, this panel is bound not only by good sense but also by circuit law to reject this argument once again. See, e.g., Brewster v. Commissioner of Internal Revenue, 607 F.2d 1369, 1373-74 (D.C.Cir.1979) (panels bound to follow circuit" }, { "docid": "15248064", "title": "", "text": "Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS. HARRY T. EDWARDS, Circuit Judge: Ellen Schrecker appeals the District Court’s decision granting summary judgment to the U.S. Department of Justice (“the Government”), in a case arising out of Schrecker’s Freedom of Information Act (“FOIA”) request for Federal Bureau of Investigation (“FBI”) records relating to MeCarthy-era investigations of Gerhart Eisler and Clinton Jencks. The Government produced over 24,000 pages of responsive documents, but redacted names and other information identifying third-party individuals mentioned in those records pursuant to Exemption 7(C) in FOIA. Exemption 7(C) permits an agency to withhold information compiled for law enforcement purposes where disclosure of such information “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C) (1996). In a prior appeal involving the same parties, we remanded the case to the District Court in order for the Government to show that it had taken “certain basic steps” to ascertain whether the individuals whose names were withheld under Exemption 7(C) are living or dead. Schrecker v. United States Dep’t of Justice, 254 F.3d 162, 167 (D.C.Cir.2001). Schreeker now challenges the District Court’s findings on remand that the Government’s efforts were adequate and that nondisclosure of the information under Exemption 7(C) is justified. See Schrecker v. United States Dep’t of Justice, 217 F.Supp.2d 29 (D.D.C.2002). We affirm the judgment of the District Court. I. Background This appeal is the latest installment in a saga that began 15 years ago. Appellant Ellen Schreeker is a history professor, a published author, and an expert on McCarthyism. In 1988, she submitted a FOIA request for FBI records on Gerhart Eisler and Clinton Jencks. Both were the subjects of FBI investigations during the McCarthy Era, in 1947 and 1953, respectively. Schrecker v. United States Dep’t of Justice, 14 F.Supp.2d 111, 114 (D.D.C.1998). Schreeker resubmitted her request in November 1994, after the Government withheld a portion of the documents responsive to her initial request. Two months later she initiated this law suit in the District Court, challenging the adequacy of the FBI’s releases. Id. In 1998, after" }, { "docid": "1462923", "title": "", "text": "and confer and submit a joint status report, by no later than April 17, 2009, suggesting a schedule for the FBI’s submission of a final Vaughn index and, as appropriate, for the subsequent filing of dispositive motions with respect to the merits of the FBI’s withholdings. 3. Information to be Included in the FBI’s Vaughn Index Although the Court does not reach the merits of the FBI’s withholdings in light of the disposition of the current cross-motions, the Court notes several issues that the FBI is advised to consider when submitting its final Vaughn index. First, the FBI’s final Vaughn index must fully account for all sample documents at issue and must include all documents in a single, comprehensive index that is complete in itself. See Founding Church of Scientology, 603 F.2d at 949. To the extent any confusion remains over the exact documents that Plaintiff intends to be included in the Vaughn index, the parties are advised to confer prior to the submission of a final Vaughn index to ensure that all documents are, in fact, accounted for in the index. The index must also adequately describe the withheld documents or deletions, as well as state the particular FOIA exemption, and explain why the exemption applies. Id. Second, the final Vaughn index must adequately explain all inconsistencies and errors identified in the processing of the sample documents. In particular, for any documents that are a part of the representative sample and that were originally withheld but have since been released (whether in part or in whole), the FBI “should explain why the once withheld portions were excised at the time of the agency’s initial review.” See Bonner v. Dep’t of State, 928 F.2d 1148, 1153 (D.C.Cir.1991). Third, as this Court has previously explained, “[u]nder D.C. Circuit precedent, an agency invoking FOIA Exemption 7(C) [or Exemption 6] must make ‘a reasonable effort to ascertain life status,’ and the agency’s efforts in that respect speak to the reasonableness of its response to a FOIA request.” Schoenman v. FBI, 575 F.Supp.2d 166,177 (D.D.C.2008) (quoting Schrecker v. DOJ, 349 F.3d 657, 662 (D.C.Cir.2003));" }, { "docid": "13062096", "title": "", "text": "might well be extant in the files of some cautious bureaucrat. Finally, the Government argues that searching for ticklers would be unduly burdensome. We readily acknowledge that “there are some limits on what an agency must do to satisfy its FOIA obligations.” Nation Magazine, Washington Bureau v. U.S. Customs Serv., 71 F.3d 885, 891-892 (D.C.Cir.1995) (holding search through 23 years of unindexed files would impose unreasonable burden upon ' agency). Schrecker claims, however, and the Government does not deny, that in other cases the FBI has managed to locate ticklers: For example, in connection with the FBI’s investigation into the assassination of Dr. Martin Luther King, Jr., a file of several hundred tickler copies was maintained by FBI Supervisor Richard Long.... In another instance, the FBI processed some twenty volumes of ticklers compiled in connection with the assassination of President John F. Kennedy. Nor does the Government deny that the Bureau retains the files of higher-level supervisors after they depart, or that in the past it has managed to locate ticklers in the files of such higher-ups. It is not improbable, therefore, that the Bureau both has the files of some supervisors who received ticklers in the Eisler and Jencks investigations and that those files are indexed and include the responsive ticklers. Schrecker observes further that “[s]ome of the files of the high supervisory officials listed on the Eisler and Jencks records as recipients of ticklers may already have been processed for public release and can be searched for ticklers pertaining to these cases.” In response to this observation, the Government raises the prospect that a search for ticklers might “eompel[] ana-geney-wide, desk-to-desk, manual search for ticklers,” but it points to nothing in the record to suggest that the search actually required will be unduly burdensome. Accordingly, we reverse the judgment of the district court on this claim. B. Exemption 1 Exemption 1 to the FOIA permits an agency to withhold information if it is “specifically authorized under criteria established by an Executive order” to do so “in the interest of national defense or foreign policy.” 5 U.S.C. § 552(b)(1)." }, { "docid": "1462924", "title": "", "text": "in fact, accounted for in the index. The index must also adequately describe the withheld documents or deletions, as well as state the particular FOIA exemption, and explain why the exemption applies. Id. Second, the final Vaughn index must adequately explain all inconsistencies and errors identified in the processing of the sample documents. In particular, for any documents that are a part of the representative sample and that were originally withheld but have since been released (whether in part or in whole), the FBI “should explain why the once withheld portions were excised at the time of the agency’s initial review.” See Bonner v. Dep’t of State, 928 F.2d 1148, 1153 (D.C.Cir.1991). Third, as this Court has previously explained, “[u]nder D.C. Circuit precedent, an agency invoking FOIA Exemption 7(C) [or Exemption 6] must make ‘a reasonable effort to ascertain life status,’ and the agency’s efforts in that respect speak to the reasonableness of its response to a FOIA request.” Schoenman v. FBI, 575 F.Supp.2d 166,177 (D.D.C.2008) (quoting Schrecker v. DOJ, 349 F.3d 657, 662 (D.C.Cir.2003)); see also Schoenman v. FBI, 576 F.Supp.2d 3, 10 (D.D.C.2008) (agency “is required to make efforts to ascertain an individual’s life status before invoking a privacy interest in connection with FOIA Exemptions 6 and 7(C)”). Indeed, although the FBI’s Vaughn index currently does not speak to this issue, the FBI apparently concedes the life status of an individual is relevant, given the fact that it re-released portions of materials based upon its conclusion, after additional research, “that certain of these individuals were [ ] deceased ..., and as a result, disclosure would not violate their personal privacy.” Third Hardy Deck ¶ 6. Accordingly, the Court advises the FBI that it must, in the future, address its efforts to ascertain “life status” in invoking FOIA Exemptions 6 and 7(C). Fourth, as the FBI acknowledges, in order to invoke FOIA Exemption 7, it must first demonstrate that the records at issue were compiled for law enforcement purposes. See Schoenman v. FBI, 575 F.Supp.2d 166, 174 (D.D.C.2008) (CKK). Admittedly, where an agency “specializes in law enforcement, its decision" }, { "docid": "13062097", "title": "", "text": "such higher-ups. It is not improbable, therefore, that the Bureau both has the files of some supervisors who received ticklers in the Eisler and Jencks investigations and that those files are indexed and include the responsive ticklers. Schrecker observes further that “[s]ome of the files of the high supervisory officials listed on the Eisler and Jencks records as recipients of ticklers may already have been processed for public release and can be searched for ticklers pertaining to these cases.” In response to this observation, the Government raises the prospect that a search for ticklers might “eompel[] ana-geney-wide, desk-to-desk, manual search for ticklers,” but it points to nothing in the record to suggest that the search actually required will be unduly burdensome. Accordingly, we reverse the judgment of the district court on this claim. B. Exemption 1 Exemption 1 to the FOIA permits an agency to withhold information if it is “specifically authorized under criteria established by an Executive order” to do so “in the interest of national defense or foreign policy.” 5 U.S.C. § 552(b)(1). In this case, Schrecker argues that the FBI erred in withholding information pursuant to Exemption 1 because, among other things, it withheld documents related to the identity of confidential sources under the theory that “[a]ll sources, dead or alive, active or inactive, must be protected for all time because otherwise current and potential sources will fear revelation of their identities at some point.” According to Schreck er, this rationale for withholding is too broad because it would “recreate[] the presumption of damage to national security due to disclosure of an intelligence source which EO 12958 eliminated.” The Government responds that it did not apply a presumption but, rather, pursuant to Executive Order 12958 considered the potential harm of releasing information about the sources implicated in this ease and concluded the information should be withheld in order to protect national security. Specifically, the Government’s de-clarant, Scott Hodes, testified that he: personally and independently.... determined that the remaining portions of classified information ... are exempt from automatic declassification pursuant [to] EO 12958, § 3.4(b) as the release" }, { "docid": "14566937", "title": "", "text": "to justify searching for a particular type of record. Cf. Meeropol v. Meese, 790 F.2d 942, 953 (D.C.Cir.1986). Here, the FBI does not deny that such a predicate exists, rendering its “speculation” claim irrelevant. Cf. Oglesby v. United States Dep’t of the Army, 79 F.3d 1172, 1185 (D.C.Cir.1996); Schrecker, 14 F.Supp.2d at 119. For these reasons we conclude that the district court erred in finding that an adequate search had been made, and remand the ease so that the FBI can be afforded an opportunity to search for tickler and ELSUR records responsive to Campbell’s FOIA request, and to proceed as the results of such searches require. B. Exemption 1 (National Security). FOIA authorizes an agency to withhold requested material if it is “properly classified” in the “interest of national defense or foreign policy” pursuant to an applicable executive order. 5 U.S.C. § 552(b)(1). In the instant case, the FBI invoked the national security exemption to redact documents and withhold at least two entire documents. The sole justification in the record for the FBI’s classification decision is a nine-year old declaration from Special Agent Earl E. Pitts generally attesting to the sensitivity of the withheld information and the general importance of safeguarding national security. On appeal, Campbell contends both that the district court failed to require the FBI to reevaluate its classifications under a new executive order and that the Pitts declaration is “too eonclusory to support summary judgment.” We find no error with regard to the executive order applied but agree that the district court erred in concluding that the Pitts declaration was sufficiently detailed to support withholding disclosure of certain materials. On the threshold issue of which executive order governs the FBI’s national security determinations, the Department favors application of E.O. 12356 (“the Reagan Order”), which was in effect at the time that the FBI made the classification decisions at issue in this case, while Campbell proposes E.O. 12958 (“the Clinton Order”), which took effect during the pendency of the district court proceedings. A district court may, upon request by an agency, permit the agency to apply a" }, { "docid": "15248065", "title": "", "text": "United States Dep’t of Justice, 254 F.3d 162, 167 (D.C.Cir.2001). Schreeker now challenges the District Court’s findings on remand that the Government’s efforts were adequate and that nondisclosure of the information under Exemption 7(C) is justified. See Schrecker v. United States Dep’t of Justice, 217 F.Supp.2d 29 (D.D.C.2002). We affirm the judgment of the District Court. I. Background This appeal is the latest installment in a saga that began 15 years ago. Appellant Ellen Schreeker is a history professor, a published author, and an expert on McCarthyism. In 1988, she submitted a FOIA request for FBI records on Gerhart Eisler and Clinton Jencks. Both were the subjects of FBI investigations during the McCarthy Era, in 1947 and 1953, respectively. Schrecker v. United States Dep’t of Justice, 14 F.Supp.2d 111, 114 (D.D.C.1998). Schreeker resubmitted her request in November 1994, after the Government withheld a portion of the documents responsive to her initial request. Two months later she initiated this law suit in the District Court, challenging the adequacy of the FBI’s releases. Id. In 1998, after the Government had conceded that “a ‘significant portion’ of its withholdings may have been inappropriate,” the District Court ordered the Government to reprocess all withholdings from responsive documents. Id. at 117. After reprocessing, the Government prepared a 100-page Vaughn index from over 24,000 pages of responsive documents. See Schreeker v. United States Dep’t of Justice, 74 F.Supp.2d 26, 28 (D.D.C.1999). A Vaughn index describes the information withheld from a sample of the responsive documents selected by the requesting party and explains the relevance of the FOIA exemption under which each item is withheld. See Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). In 1999, the District Court granted the Government’s motion for summary judgment, upholding the Government’s decision to withhold information from the responsive documents on the basis of six FOIA exemptions, including Exemption 7(C). Schreeker, 74 F.Supp.2d at 29-35. On appeal, we affirmed the District Court’s decision with two exceptions. We first held that because the Government had acknowledged the previous existence" }, { "docid": "13062102", "title": "", "text": "took certain basic steps to ascertain whether an individual was dead or alive, we are unable to say whether the Government reasonably balanced the interests in personal privacy against the public interest in release of the information at issue. We therefore reverse this aspect of the judgment; on remand the Government may document what “other readily available information” it consulted, and the district court can decide in the first instance whether the Government did all it should have done, and whether it may withhold the disputed information pursuant to Exemption 7(C). Relatedly, Schrecker argues that the Government failed to weigh the privacy interests of the people it assumed were alive, opting instead for a per se rule of withholding. The Government denies using a per se rule and points us to the Second Hodes Declaration at ¶ 40: In asserting this exemption, each piece of information was scrutinized to determine the nature and strength of the privacy interest of any individual whose name and/or identifying data appears in the documents at issue. In withholding the information, the individual’s privacy interest was balanced against the public’s interest in disclosure. In each instance where information was withheld, it was determined that individual privacy interests were not outweighed by any public interest. Although the next few sentences of the declaration appear to state general principles rather than relate how the facts of this case were weighed in the balance, the quoted passage establishes that “in each instance where information was withheld,” the agency considered the private and public interests at stake. We therefore affirm the judgment of the district court with regard to this claim. III. Conclusion Schrecker raises a number of other arguments against the Government’s invocation of various exemptions to the FOIA, all of which we reject for substantially the reasons given by the district court. See Schrecker, 74 F.Supp.2d 26. With respect both to the adequacy of the search for ticklers and to the applicability of Exemption 7(e), we reverse the judgment of the district court and remand this matter for further proceedings consistent with this opinion. In all other" }, { "docid": "23313341", "title": "", "text": "which, Voinche will have the opportunity to renew his cross-motion for summary judgment as to the FBI’s assertion of Exemption 7(E). This Court shall deny Voinche’s motion for summary judgment in all other respects. C. Defendant’s Motions to Amend the Briefing Schedule In the course of this litigation, the FBI has filed several motions to extend the briefing schedule to allow it more time to file a dispositive motion or to respond to Voinche’s motions. The resulting delays do not appear to have prejudiced Voinche nor, more importantly, does he claim that they did. Prior to filing each of these motions, the FBI has received Voinche’s consent or has attempted to do so, in accordance with LCvR 7(m). The FBI’s justifications for requesting the extensions of time are well within reason and this Court is satisfied that the FBI did not act in bad faith. In the absence of any opposition by Voinche and in light of the above-mentioned factors, this Court shall grant the FBI’s motions to amend the briefing schedule nunc pro tunc. Consequently, all documents filed by each- party are considered timely filed. D. Plaintiffs Motion for Leave to Seek Discovery FOIA actions are typically resolved without discovery. See Wheeler v. CIA 271 F.Supp.2d 132, 139 (D.D.C.2003) (“Discovery is generally unavailable in FOIA actions.”); Pub. Citizen Health Research Group v. FDA, 997 F.Supp. 56, 72 (D.D.C.1998) (“Discovery is to be sparingly granted in FOIA actions.”), aff'd in part, rev’d in part, 185 F.3d 898 (D.C.Cir.1999). When allowed, the scope of discovery is usually limited to the adequacy of the agency’s search and similar matters. See Schrecker v. United States Dep’t of Justice, 217 F.Supp.2d 29, 35 (D.D.C.2002) (“Discovery in FOIA is rare and should be denied where an agency’s declarations are reasonably detailed, submitted in good faith and the court is satisfied that no factual dispute remains.”); Pub. Citizen Health Research Group, 997 F.Supp. at 72-73 (“If a court is satisfied that the affidavits supplied by the agency meet the established standards for summary judgment in a FOIA case and that plaintiff has not adequately called these" }, { "docid": "20819208", "title": "", "text": "“Exemption 7(C)’s privacy language is broader than the comparable language in Exemption 6,” Reporters Comm., 489 U.S. at 756, 109 S.Ct. 1468, we confine our analysis to Exemption 7(C). III. We review de novo the district court’s conclusion that Exemption 7(C) justifies NIH’s Glomar responses to PETA’s second and third FOIA requests. That exemption supports a Glomar response if acknowledgment of responsive documents “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). To answer that question, we “weigh the public interest in the release of information against the privacy interest in nondisclosure.” Schrecker v. U.S. Dep’t of Justice, 849 F.3d 657, 661 (D.C.Cir.2003). We consider PETA’s second and third FOIA requests in turn. A. PETA’s second FOIA request encompasses “materials related to all [NIH] investigations into complaints ... regarding [the three named researchers] at Auburn University’s Scott-Ritchey Research Center.” We conclude that a Glomar response is warranted for the heartland of responsive documents, but we hold that NIH’s across-the-board Glomar response is unjustified because certain types of responsive documents would fall outside of Exemption 7(C). 1. PETA’s second request by its terms — and at its core — seeks disclosure of records that would confirm that NIH had investigated the three researchers. We agree with the district court that Exemption 7(C) justifies a Glomar response for any such documents. Courts have repeatedly recognized the “substantial” privacy interest held by “the targets of law-enforcement investigations ... in ensuring that their relationship to the investigations remains secret.” Roth, 642 F.3d at 1174 (internal quotation marks omitted). In Jefferson v. Department of Justice, 284 F.3d 172, 180 (D.C.Cir.2002), for instance, we emphasized an Assistant U.S. Attorney’s strong privacy interest in avoiding the disclosure of any investigation of misconduct. See also Schrecker, 349 F.3d at 666 (“We have long recognized ... that ‘the mention of an individual’s name in a law enforcement file will engender comment and speculation and carries a stigmatizing connotation.’ ” (quoting Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C.Cir.1990))). The same concerns exist in the context of non-criminal investigations, including investigations of federal" } ]

[ { "docid": "22085405", "title": "", "text": "corporation. The government was not compelled to prove that Gent was intimately familiar with each and every detail of the conspiracy. The critical nexus of guilt, the essential nature of the agreement and Gent’s connection with it, was amply proven. Blumenthal v. United States, 332 U.S. 539, 557, 68 S.Ct. 248, 92 L.Ed. 154 (1947). The government’s showing that Gent had knowledge of the agreement and associated with the plan to promote its success was sufficient. Ingram v. United States, 360 U.S. 672, 678, 79 S.Ct. 1314, 3 L.Ed.2d 1503 (1959). A minimal showing of actual knowing participation is sufficient to sustain a conspiracy conviction challenged on appeal, when the conspiracy has been adequately established by other independent evidence. United States v. Morrow, 537 F.2d 120, 130 (5th Cir. 1976); United States v. McGann, 431 F.2d 1104, 1107 (5th Cir. 1970), cert. denied, 401 U.S. 919, 91 S.Ct. 904, 27 L.Ed.2d 821 (1971). While mere knowledge of a conspiracy is not alone sufficient to hold an alleged coconspirator responsible as a culpable participant, Gent’s actions clearly and unmistakably furthered the independently established conspiracy. Thus, on this appellate review, we need find only “slight evidence” of the guilty nexus between Gent and the conspiracy. United States v. Bass, 562 F.2d 967, 969 (5th Cir. 1977); United States v. Alvarez, 548 F.2d 542, 544 (5th Cir. 1977). However, here there is more than “slight evidence.” Appellant Gent maintains that, reading the record as a whole, there was insufficient evidence of his knowing participation. “[C]onspiracy to commit a particular substantive offense cannot exist without at least the degree of criminal intent necessary for the substantive offense itself.” Ingram v. United States, supra at 678, 79 S.Ct. at 1319, quoting, Note, Developments in the Law-Criminal Conspiracy, 72 Harv.L. Rev. 920, 939 (1959). Here the evidence established that Gent had the requisite intent necessary to his conviction under count one and that he aided in the conspiracy. See Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); United States v. Gallishaw, 428 F.2d 760 (5th Cir. 1970); Nelson v. United" } ]

[ { "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": "7174543", "title": "", "text": "Finally, this court has adhered to the former Fifth Circuit’s rule concerning the failure to hold a James hearing. United States v. Miller, 664 F.2d 826, 827-28 (11th Cir. 1981) (citing United States v. Grassi, supra, United States v. Ricks, supra, and United States v. Ocanas, supra). Thus, we hold that the district court’s failure to hold a James hearing in this case, by itself, is not reversible error. We also cannot agree with the defendants’ second argument that the district court’s failure to expressly determine that a James hearing was “not reasonably practical,” by itself, requires a new trial. We do not read James to impose an absolute requirement that the district court expressly make this “impracticality” finding before deciding to forego the James hearing. However, we note that the normal applicability of this impracticality test underscores the significant preference accorded to the James hearing. Yet, the impracticality finding is simply part of the “preferred” procedure that the James court chose to reduce the problems associated with the admission of co-conspirators’ statements. Accordingly, we hold that the district court’s failure to expressly determine that a James hearing was not reasonably practical in this case, by itself, is not reversible error. The defendants’ final attack on the admissibility of the challenged statements focuses on the district court’s finding, at the conclusion of all the evidence, that a preponderance of independent evidence established (1) that a conspiracy existed between the defendants, and (2) that the statements were made in the course of and in furtherance of the conspiracy. United States v. James, 590 F.2d at 582. In reviewing this finding, we apply the test for the existence of a conspiracy articulated in two recent cases of the former Fifth Circuit involving a James hearing: The essence of a conspiracy is the agreement to engage in concerted unlawful activity. To connect the defendant to a conspiracy, the prosecution must demonstrate that the defendant agreed with others to join the conspiracy and participate in the achievement of the illegal objective. United States v. Grassi, 616 F.2d 1295, 1301 (5th Cir.), cert. denied, 449" }, { "docid": "3361216", "title": "", "text": "cautionary instruction will cleanse the record of prejudice or whether a mistrial is required. 590 F.2d at 582-83. Appellants Grassi and Gail contend that the district court failed to apply the standards for proof of conspiracy enunciated in James, and that as a result, inadmissible hearsay was injected into the trial. The appellants further contend that the record as a whole is insufficient to sustain their conspiracy convictions. At the outset of the James hearing the court urged the prosecution to move quickly and to present no more than the “threshold basis” for the invocation of the coconspirator rule. Had the prosecution attained the threshold as to every defendant and every conspiracy, we would have no quarrel with the district court’s sustained efforts to expedite the proceedings. While the preliminary requirement of substantial evidence is not very rigorous, it demands at the very least that the court should determine that there is enough merit in the prosecution’s ease to risk the admission of hearsay that might later prove inadmissible when the court makes its second, more scrutinizing analysis of the evidence. As to Grassi’s link with the count 1 conspiracy, the James hearing record is nearly void. Agent Altman testified that on July 27 Grassi met with the undercover agents and Ammirato at Ammirato’s home, and that Grassi discussed his role in the planned importation of marijuana (count 2 conspiracy). The James hearing record shows no discussion of the count 1 conspiracy at this meeting except for Ammirato’s introduction of defendant Beuf to the agents as “the kid who took the two pistols to Chicago for you.” Nowhere does the record show that Grassi had joined the count 1 conspiracy, although it is clear that he was familiar with the conspirators and knew of their activities. The district court ruled that the prosecution had submitted substantial independent evidence against Grassi on count 1; consequently, government witnesses were allowed to testify that Ammirato had described Grassi as part of Ammirato’s group. If the evidence later produced at trial had supplied the needed link between Grassi and the count 1 conspiracy, we" }, { "docid": "5993128", "title": "", "text": "obtain transportation for the shipment, and asked about the size of the airfield in Colombia and the availability of fuel. Expense money was requested, but none was given. Tentative commissions for the smuggling operation were discussed. The Court stated: “Other than an agreement that sometime in the future the defendants would import, some cocaine no act of illegality was established.” 567 F.2d at 640. “[W]e look upon this as a most unusual case. There were many meetings and much talk — a lot of smoke and no fire.” 567 F.2d at 641. The court concluded that there was “an abundance of evidence from which a jury could believe beyond a reasonable doubt that the defendants did indeed unlawfully conspire, although they may have taken no action to execute the conspiracy.” Id. In United States v. Grassi, 616 F.2d 1295, 1302 (5th Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 363, 66 L.Ed.2d 220 (1980), Grassi was convicted of conspiracy to import marijuana even though the agreement to do so was conditional: Grassi does not deny that he was a full participant in the planning of the marijuana importation, but he argues that discussions of the scheme were only preliminary to, and did not result in, a final criminal agreement. It is true that the importation was to occur only if Ammirato and Grassi became satisfied that they were not dealing with police, but such a proviso is like any condition in an agreement. That the agreement was subject to a condition does not mak.e it any less an agreement. At the time of his arrest, Grassi had agreed in principle to the undertaking, and together with Ammirato he had begun to negotiate the details of the plan and to discuss the necessary preparations. From this, the jury could find that Grassi had conspired to import marijuana. 616 F.2d at 1302. Elledge, like the defendant in Grassi, had agreed to the undertaking in principle, and had begun to discuss the details of the scheme. A reasonable jury could conclude that Elledge knowingly participated in a conspiracy to import and distribute marijuana." }, { "docid": "3361220", "title": "", "text": "support his count 1 conviction. Since the independent evidence against Grassi is not substantial, we give no weight to the hearsay evidence that Grassi worked for Ammirato, and it follows that the prosecution’s evidence against Grassi under count 1 was fatally deficient. United States v. Malatesta, 590 F.2d 1379 (5th Cir. 1979). As for Grassi’s conviction under count 2, charging him with conspiracy to import marijuana, we find a sound basis in evidence. Grassi does not deny that he was a full participant in the planning of the marijuana importation, but he argues that discussions of the scheme were only preliminary to, and did not result in, a final criminal agreement. It is true that the importation was to occur only if Ammirato and Grassi became satisfied that they were not dealing with police, but such a proviso is like any condition in an agreement. That the agreement was subject to a condition does not make it any less an agreement. At the time of his arrest, Grassi had agreed in principle to the undertaking, and together with Ammirato he had begun to negotiate the details of the plan and to discuss the necessary preparations. From this, the jury could find that Grassi had conspired to import marijuana. United States v. Thomas, 567 F.2d 638 (5th Cir.), cert. denied, 439 U.S. 822, 99 S.Ct. 90, 58 L.Ed.2d 114 (1978). Like Grassi, appellant Gail contests the sufficiency of the evidence underlying his count 1 conspiracy conviction. As to Gail, however, there is no shortage of evidence of participation in at least some aspects of the wide-ranging criminal enterprise described in count 1. Gail’s principal contention is that the many transactions proven during the trial were in reality separate conspiracies, most of which had nothing to do with Gail, and that the prosecution failed to establish the single, all-encompassing conspiracy alleged in the indictment. This asserted variance between the indictment and the evidence is ground for reversal only if it affected a substantial right of the defendant. Proof of separate conspiracies after an indictment charging one conspiracy is not, per se, prejudicial." }, { "docid": "3361217", "title": "", "text": "more scrutinizing analysis of the evidence. As to Grassi’s link with the count 1 conspiracy, the James hearing record is nearly void. Agent Altman testified that on July 27 Grassi met with the undercover agents and Ammirato at Ammirato’s home, and that Grassi discussed his role in the planned importation of marijuana (count 2 conspiracy). The James hearing record shows no discussion of the count 1 conspiracy at this meeting except for Ammirato’s introduction of defendant Beuf to the agents as “the kid who took the two pistols to Chicago for you.” Nowhere does the record show that Grassi had joined the count 1 conspiracy, although it is clear that he was familiar with the conspirators and knew of their activities. The district court ruled that the prosecution had submitted substantial independent evidence against Grassi on count 1; consequently, government witnesses were allowed to testify that Ammirato had described Grassi as part of Ammirato’s group. If the evidence later produced at trial had supplied the needed link between Grassi and the count 1 conspiracy, we would hold that any error at the James hearing was not prejudicial. The trial record, however, adds very little as to Grassi’s connection with the count 1 conspiracy. The agents again testified that Grassi was present at the July 27 meeting and that he discussed the terms of his involvement in the plan to import marijuana. It also appears that the others present at the meeting talked of other illicit transactions comprising the count 1 conspiracy, and that Grassi listened to these conversations. Nevertheless, there is no evidence that Grassi was a participant in the count 1 conspiracy discussions, or that he indicated, expressly or impliedly, his involvement or personal interest in the count 1 conspiracy. Rather, the record shows that Grassi attended the July 27 meeting only to protect his interests in the marijuana importation scheme. It is a cardinal rule of conspiracy law that one does not become a coconspirator simply by virtue of knowledge of a conspiracy and association with conspirators. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85" }, { "docid": "7174544", "title": "", "text": "hold that the district court’s failure to expressly determine that a James hearing was not reasonably practical in this case, by itself, is not reversible error. The defendants’ final attack on the admissibility of the challenged statements focuses on the district court’s finding, at the conclusion of all the evidence, that a preponderance of independent evidence established (1) that a conspiracy existed between the defendants, and (2) that the statements were made in the course of and in furtherance of the conspiracy. United States v. James, 590 F.2d at 582. In reviewing this finding, we apply the test for the existence of a conspiracy articulated in two recent cases of the former Fifth Circuit involving a James hearing: The essence of a conspiracy is the agreement to engage in concerted unlawful activity. To connect the defendant to a conspiracy, the prosecution must demonstrate that the defendant agreed with others to join the conspiracy and participate in the achievement of the illegal objective. United States v. Grassi, 616 F.2d 1295, 1301 (5th Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 363, 66 L.Ed.2d 220 (1980), quoted in United States v. Perry, 624 F.2d 29, 31 (5th Cir. 1980). Further, in reviewing the preponderance question as to each defendant, we also consider, but only against the particular defendant-declarant, the statements that he himself made to others. A defendant’s own statements are admissible against him as party admissions under Fed.R.Evid. 801(d)(2)(A). United States v. Hewitt, 663 F.2d 1381, 1388 (11th Cir. 1981). Thus, a defendant’s own statements constitute independent evidence for the purpose of applying the James standards as to that particular defendant. As to each defendant here, considering his own statements (but not the statements of his co-defendant) together with the other independent evidence, we conclude that the district court’s preponderance finding is amply supported by the record. We thus find no error in this regard. Both defendants were directors and shareholders of Deltron. From the beginning of Deltron’s organization, both defendants were extensively involved in the daily operations of the business. The testimony of Dennis O’Madigan, a consultant hired by Deltron," }, { "docid": "17186474", "title": "", "text": "conspiracy and for the purposes of the conspiracy and that there was substantial independant evidence at the time those statements were offered and now the Court finds at the conclusion of the Government’s case that there is a preponderance of the evidence to make those findings.” Seek and Miller attempted to secure a ruling as to whether the evidence proved one, or more than one, conspiracy, which the trial court declined to do. The finding quoted above is in full accord with the holding of United States v. James, 590 F.2d 575 (5th Cir. 1979) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979); see also United States v. Grassi, 616 F.2d 1295 (5th Cir. 1980); United States v. Atkins, 618 F.2d 366 (5th Cir. 1980), rehearing denied, 629 F.2d 1350 (5th Cir. 1980); United States v. Mesa, 660 F.2d 1070 (5th Cir. 1981); United States v. Hawkins, 661 F.2d 436 (5th Cir. 1981) , and the evidence fully supports that finding as to each defendant. These appellants also requested a modified “Apollo” charge to the jury. This court’s decision in James makes it plain that only when the trial judge has determined, at the close of the evidence, that the prosecution has not demonstrated the defendant’s participation in a conspiracy by a preponderance of independent evidence, that an instruction to the jury should be considered. 590 F.2d at 582-83. Under those circumstances the trial judge must decide whether a cautionary instruction to the jury will cure the prejudicial effect of the co-conspirator’s statements, or whether a mistrial is required. United States v. Grassi, 616 F.2d 1295 (5th Cir. 1980). Here the trial judge correctly determined that the prosecution had demonstrated by a preponderance of evidence independent of the co-conspirator statements that a conspiracy existed and that each defendant participated in the conspir acy. Accordingly, there was no occasion for the requested jury instruction and it was properly refused. Appellant Seek urges another alleged error in connection with the admission of co-conspirator statements. Seek contends that he was prejudiced as a result of the trial" }, { "docid": "3361214", "title": "", "text": "Ammirato. The eight defendants were arrested in late November of 1978 and joined in a 21-count indictment alleging two conspiracies and nineteen substantive offenses. Only Grassi and Gail resisted their convictions to the conclusion of the jury trial. I SUFFICIENCY OF THE EVIDENCE Following the selection of the jury but prior to the examination of the first witness before the jury, the district court held a hearing to determine the admissibility of certain extrajudicial declarations that the prosecution intended to introduce under the coeonspirator rule. Such a hearing is mandated by United States v. James, 590 F.2d 575 (5th Cir.), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). The purpose of the James hearing is to establish the existence, or nonexistence, of the predicates for the admission of a coconspirator’s extrajudicial declaration before the declaration is made known to the jury. To be admissible, the extrajudicial statement must have been made (1) by one who conspired with the party against whom the statement is offered, (2) during the course of the conspiracy, and (3) in furtherance of the conspiracy. Fed.R.Evid. 801(d)(2)(E). Under James, the responsibility for making these findings rests exclusively with the judge. 590 F.2d at 579-80. Evidence submitted at a James hearing for the purpose of proving a conspiracy must, of course, be free from hearsay objection; otherwise, a coconspirator’s hearsay might bootstrap itself into admissible evidence. Moreover, in order to protect the defendant from the admission of prejudicial hearsay on the basis of threadbare evidence of conspiracy, the judge must decide at the conclusion of the James hearing whether the independent evidence linking the defendant to the conspiracy is substantial. 590 F.2d at 580-81. If a coconspirator’s extrajudicial declaration is admitted into evidence, the judge must reconsider its admissibility at the conclusion of the trial. His second decision, however, is to be made by a higher standard: whether the prosecution, through independent evidence, has demonstrated the defendant’s participation in a conspiracy by a preponderance of the evidence. If the prosecution has not pre vailed on this point, the judge must decide whether a" }, { "docid": "3361219", "title": "", "text": "L.Ed.2d 128 (1940); United States v. Barrera, 547 F.2d 1250 (5th Cir. 1977); United States v. Chandler, 586 F.2d 593 (5th Cir. 1978). The essence of conspiracy is the agreement to engage in concerted unlawful activity. To connect the defendant to a conspiracy, the prosecution must demonstrate that the defendant agreed with others to join the conspiracy and participate in the achievement of the illegal objective. United States v. Avila-Dominguez, 610 F.2d 1266 (5th Cir. 1980). Conspiracy law is not a dragnet for apprehending those with criminal dispositions. To prove that Grassi was aware of the illegal plan charged in count 1, and even approved of it, may impugn his character but does not place him in violation of the conspiracy laws. While evidence of knowledge and association may be combined with other circumstantial evidence to prove an agreement to join a conspiracy, United States v. Etley, 574 F.2d 850 (5th Cir. 1978); United States v. Evans, 572 F.2d 455 (5th Cir. 1978), we are unable to find any additional independent evidence against Grassi to support his count 1 conviction. Since the independent evidence against Grassi is not substantial, we give no weight to the hearsay evidence that Grassi worked for Ammirato, and it follows that the prosecution’s evidence against Grassi under count 1 was fatally deficient. United States v. Malatesta, 590 F.2d 1379 (5th Cir. 1979). As for Grassi’s conviction under count 2, charging him with conspiracy to import marijuana, we find a sound basis in evidence. Grassi does not deny that he was a full participant in the planning of the marijuana importation, but he argues that discussions of the scheme were only preliminary to, and did not result in, a final criminal agreement. It is true that the importation was to occur only if Ammirato and Grassi became satisfied that they were not dealing with police, but such a proviso is like any condition in an agreement. That the agreement was subject to a condition does not make it any less an agreement. At the time of his arrest, Grassi had agreed in principle to the undertaking," }, { "docid": "23401782", "title": "", "text": "charged by Counts III and IV. These counts charged Welch with two separate conspiracies to obstruct the enforcement of the criminal laws of the State of Texas with the intent to facilitate an illegal gambling business pursuant to 18 U.S.C.A. § 1511. Under this statute, it is part of the Government’s burden to prove, inter alia, that there was a conspiracy, the object of which was to obstruct the enforcement of the criminal laws of Texas with the intent to facilitate an illegal gambling business, and that Welch was a member of that conspiracy. See United States v. Cylkouski, 556 F.2d 799, 803 (6th Cir. 1977). “The essence of conspiracy is the agreement to engage in concerted unlawful activity.” Grassi, 616 F.2d at 1301; United States v. Suarez, 608 F.2d 584, 586 (5th Cir. 1979). “There must be proof beyond reasonable doubt that a conspiracy existed, that the accused knew of it, and that the accused, with that knowledge, voluntarily became a part of it.” United States v. Gutierrez, 559 F.2d 1278, 1280 (5th Cir. 1977). See United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.) (en banc), cert. denied, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777 (1979) & 444 U.S. 846, 100 S.Ct. 91, 62 L.Ed.2d 59 (1979). “[P]articipation in a criminal conspiracy need not be proved by direct evidence; a common purpose and plan may be inferred from a ‘development and a collocation of circumstances.’ ” Id. (quoting Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942)). The standard for review on appeal is whether there is substantial evidence to support the conspiracy conviction when the evidence is viewed in the light most favorable to the Government. Malatesta, 590 F.2d at 1382. With respect to Count III, Welch argues that, although the Government might have shown that Welch knew of the existence of Cantrell’s game, there was no evidence that Welch agreed to facilitate the game. It is clear that mere association with conspirators or knowledge of a conspiracy is insufficient to convict a defendant of conspiracy; rather, the" }, { "docid": "23632989", "title": "", "text": "conspiracy. United States v. Grassi, 616 F.2d 1295, 1300 (5th Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 363, 66 L.Ed.2d 220 (1980); United States v. James, 590 F.2d at 578. These requirements must be established by a preponderance of independent evidence. United States v. Grassi, 616 F.2d at 1300-01. Wilson does not identify any specific evidence in his claim of a James violation. His contention, though, seems to be directed generally at the testimony of Robert Earl Turner. Regardless of the evidence to which Wilson is referring, however, we reject his contention that the rule of James was violated. James applies only to hearsay statements of coconspirators. See United States v. Grassi, 616 F.2d at 1300. None of the evidence upon which we rely to uphold Wilson’s conspiracy conviction was hearsay. Instead, the evidence involved the witnesses’ observations and personal knowledge of the acts of and arrangements between Wilson, Counter, and other persons. We therefore reject Wilson’s James claim. 2. Possession Count Wilson next challenges his conviction for possession of heroin with intent to distribute it. Finding the evidence insufficient, we reverse. The evidence introduced to prove Wilson’s guilt under this count indicates that on April 3, 1978, the Dallas police received a tip from an informant that persons at the 3700 block of Dildock Street in Dallas, Texas, were in possession of and selling heroin. Two Dallas police narcotics officers went to that location and found Wilson and two other men engaged in a small stakes dice game. The officers discovered on the ground in some bushes about ten feet from the two men two contraceptive prophylactics containing forty-four capsules of heroin. Wilson had no drugs on him. He was arrested along with the other two men, but never was prosecuted by the State of Texas for this incident. Wilson subsequently was indicted by a federal grand jury for possession with intent to distribute heroin for this same occurrence. Possession of a controlled substance with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) (1976), may be either actual or constructive. United States v. Moreno," }, { "docid": "5993129", "title": "", "text": "that he was a full participant in the planning of the marijuana importation, but he argues that discussions of the scheme were only preliminary to, and did not result in, a final criminal agreement. It is true that the importation was to occur only if Ammirato and Grassi became satisfied that they were not dealing with police, but such a proviso is like any condition in an agreement. That the agreement was subject to a condition does not mak.e it any less an agreement. At the time of his arrest, Grassi had agreed in principle to the undertaking, and together with Ammirato he had begun to negotiate the details of the plan and to discuss the necessary preparations. From this, the jury could find that Grassi had conspired to import marijuana. 616 F.2d at 1302. Elledge, like the defendant in Grassi, had agreed to the undertaking in principle, and had begun to discuss the details of the scheme. A reasonable jury could conclude that Elledge knowingly participated in a conspiracy to import and distribute marijuana. Elledge (1) asked his client to obtain a suitable aircraft, (2) determined that they wanted to have a “plane load”, (3) said the marijuana would be waiting at an airport, (4) discussed arrangements for paying the pilot, (5) contacted financial backers, (6) said the distribution network was set up, (7) discussed the profits from the venture, (8) asked to meet with the pilot, (9) participated in the airport meeting with the pilot, and (10) told the pilot they would be doing the “grass deal first.” That the plan was not ultimately completed or executed does not negate the crime of conspiracy. United States v. Cuni, 689 F.2d 1353, 1356 (11th Cir.1982) (whether object of conspiracy is achieved is immaterial). Elledge also argues that there was insufficient evidence of his intent to enter the conspiracy, that he was merely “puffing” when he held himself out as a conspirator. This argument is based upon Elledge’s own testimony that he was conducting a secret investigation on his own, and the fact that he failed to do several things" }, { "docid": "3361228", "title": "", "text": "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 States v. Foundas, 610 F.2d 298 (5th Cir. 1980). We can see no reason why the special parole term of section 963 should not be mandatory for conspirators if the section applies at all. We remand for resentencing, however, because the defendant was not present when his sentence was' extended. See Caille v. United States, 487 F.2d 614 (5th Cir. 1973). AFFIRMED in part, REVERSED in part, and REMANDED. . Defendants Frank Ammirato, Carl Watson, Ken Lytle, Sturgall Russell and Charles Watson pleaded guilty in the early stages of the trial. Defendant Alfred Beuf, who requested a bench trial, was tried together with the appellants and was acquitted by the court. . On May 22, Altman and Peacock met with the Watson brothers to discuss their agreement to buy quaalude pills. The two pistol barrels that Charles Watson had received from the agents were returned because Watson’s source for silencers was not interested in the job. At a meeting on May 23 between the agents, Ammirato and Carl Watson, Ammirato stated that he could provide" }, { "docid": "3361218", "title": "", "text": "would hold that any error at the James hearing was not prejudicial. The trial record, however, adds very little as to Grassi’s connection with the count 1 conspiracy. The agents again testified that Grassi was present at the July 27 meeting and that he discussed the terms of his involvement in the plan to import marijuana. It also appears that the others present at the meeting talked of other illicit transactions comprising the count 1 conspiracy, and that Grassi listened to these conversations. Nevertheless, there is no evidence that Grassi was a participant in the count 1 conspiracy discussions, or that he indicated, expressly or impliedly, his involvement or personal interest in the count 1 conspiracy. Rather, the record shows that Grassi attended the July 27 meeting only to protect his interests in the marijuana importation scheme. It is a cardinal rule of conspiracy law that one does not become a coconspirator simply by virtue of knowledge of a conspiracy and association with conspirators. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed.2d 128 (1940); United States v. Barrera, 547 F.2d 1250 (5th Cir. 1977); United States v. Chandler, 586 F.2d 593 (5th Cir. 1978). The essence of conspiracy is the agreement to engage in concerted unlawful activity. To connect the defendant to a conspiracy, the prosecution must demonstrate that the defendant agreed with others to join the conspiracy and participate in the achievement of the illegal objective. United States v. Avila-Dominguez, 610 F.2d 1266 (5th Cir. 1980). Conspiracy law is not a dragnet for apprehending those with criminal dispositions. To prove that Grassi was aware of the illegal plan charged in count 1, and even approved of it, may impugn his character but does not place him in violation of the conspiracy laws. While evidence of knowledge and association may be combined with other circumstantial evidence to prove an agreement to join a conspiracy, United States v. Etley, 574 F.2d 850 (5th Cir. 1978); United States v. Evans, 572 F.2d 455 (5th Cir. 1978), we are unable to find any additional independent evidence against Grassi to" }, { "docid": "23401783", "title": "", "text": "1977). See United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.) (en banc), cert. denied, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777 (1979) & 444 U.S. 846, 100 S.Ct. 91, 62 L.Ed.2d 59 (1979). “[P]articipation in a criminal conspiracy need not be proved by direct evidence; a common purpose and plan may be inferred from a ‘development and a collocation of circumstances.’ ” Id. (quoting Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942)). The standard for review on appeal is whether there is substantial evidence to support the conspiracy conviction when the evidence is viewed in the light most favorable to the Government. Malatesta, 590 F.2d at 1382. With respect to Count III, Welch argues that, although the Government might have shown that Welch knew of the existence of Cantrell’s game, there was no evidence that Welch agreed to facilitate the game. It is clear that mere association with conspirators or knowledge of a conspiracy is insufficient to convict a defendant of conspiracy; rather, the Government must demonstrate that the defendant agreed with others that together they would accomplish the unlawful object of the conspiracy. Grassi, 616 F.2d at 1301. Nei ther direct evidence nor a formal agreement is necessary, however, to establish a conspiracy. United States v. Barrera, 547 F.2d 1250, 1256 (5th Cir. 1977). Evidence of knowledge and association, in conjunction with other circumstantial evidence, can prove an agreement to join a conspiracy. Grassi, 616 F.2d at 1301-02. Where knowledge of a conspiracy and an intentional act in furtherance thereof can be proved, the jury may reasonably infer the existence of an agreement. A person’s acts can create an inference concerning what he has agreed to do and, therefore, an agreement to join a criminal conspiracy may be inferred from the performance of acts that further its purpose. Marx, 635 F.2d at 439 (“The defendant’s assent to a conspiracy may be inferred from acts which furthered the purpose of the conspiracy.”); United States v. Morado, 454 F.2d 167, 174 (5th Cir.) (“[P]roof of such an agreement may rest" }, { "docid": "3361213", "title": "", "text": "Ammirato and Grassi at Ammirato’s home. The discussion at this meeting covered the planned marijuana importation as well as the many other completed and proposed illicit transactions. Ammirato told the agents that they would not receive any more pistols or silencers until the marijuana importation was accomplished. Grassi then proposed that if the agents could provide their own planes for the marijuana importation, he would send one of his men to protect them and arrange for a purchase of fifteen to thirty kilograms of cocaine along the way. The conversation then turned to the other illicit deals, and although Grassi listened, it does not appear that he contributed to this discussion or took part in any negotiation. Further discussions and transactions between the agents and certain defendants followed. The agents’ last conversation with Gail before his arrest was at a meeting in Chicago on September 19. Gail stated that he was still interested in obtaining quaaludes, possibly in exchange for pistols and silencers, and asked when the agents thought they would receive their quaaludes from Ammirato. The eight defendants were arrested in late November of 1978 and joined in a 21-count indictment alleging two conspiracies and nineteen substantive offenses. Only Grassi and Gail resisted their convictions to the conclusion of the jury trial. I SUFFICIENCY OF THE EVIDENCE Following the selection of the jury but prior to the examination of the first witness before the jury, the district court held a hearing to determine the admissibility of certain extrajudicial declarations that the prosecution intended to introduce under the coeonspirator rule. Such a hearing is mandated by United States v. James, 590 F.2d 575 (5th Cir.), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). The purpose of the James hearing is to establish the existence, or nonexistence, of the predicates for the admission of a coconspirator’s extrajudicial declaration before the declaration is made known to the jury. To be admissible, the extrajudicial statement must have been made (1) by one who conspired with the party against whom the statement is offered, (2) during the course of the" }, { "docid": "3361221", "title": "", "text": "and together with Ammirato he had begun to negotiate the details of the plan and to discuss the necessary preparations. From this, the jury could find that Grassi had conspired to import marijuana. United States v. Thomas, 567 F.2d 638 (5th Cir.), cert. denied, 439 U.S. 822, 99 S.Ct. 90, 58 L.Ed.2d 114 (1978). Like Grassi, appellant Gail contests the sufficiency of the evidence underlying his count 1 conspiracy conviction. As to Gail, however, there is no shortage of evidence of participation in at least some aspects of the wide-ranging criminal enterprise described in count 1. Gail’s principal contention is that the many transactions proven during the trial were in reality separate conspiracies, most of which had nothing to do with Gail, and that the prosecution failed to establish the single, all-encompassing conspiracy alleged in the indictment. This asserted variance between the indictment and the evidence is ground for reversal only if it affected a substantial right of the defendant. Proof of separate conspiracies after an indictment charging one conspiracy is not, per se, prejudicial. Robinson v. United States, 333 F.2d 950 (5th Cir.), cert. denied, 379 U.S. 921, 85 S.Ct. 277, 13 L.Ed.2d 335 (1964). Gail contends that he was prejudiced before the jury by his joinder in a single trial with numerous unrelated defendants and criminal evidence based on an imaginary grand conspiracy. We therefore consider the question of variance of proof together with the question of whether joinder was permissible. II JOINDER The propriety of the joinder of two or more defendants in a single indictment is governed by Rule 8(b) of the Federal Rules of Criminal Procedure, which provides: Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts of transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count. Whether joinder is sound under Rule 8(b) is to be determined from" }, { "docid": "23632988", "title": "", "text": "$4.00. Wilson objected to this cut and stated that he would from then on deal directly with Counter, eliminating his contact with Turner. In the summer of 1978, Turner supplied Wilson with heroin to sell on about six occasions, including the day Wilson was arrested, and he once saw Counter directly supply Wilson with heroin capsules. This evidence clearly establishes the existence of a conspiracy to distribute heroin in South Dallas, that Wilson knew of the conspiracy, and that, with his knowledge, he voluntarily participated in the conspiracy. United States v. Middlebrooks, 618 F.2d at 278. Wilson claims, however, that some of the evidence adduced at trial by the government concerning his involvement in the conspiracy was inadmissible under United States v. James, 590 F.2d 575. Under James, an extra-judicial, hearsay statement of a coconspirator may be admitted against a criminal defendant only if the statement was made (1) by one who conspired with the party against whom the statement is offered, (2) during the course of the conspiracy and (3) in furtherance of the conspiracy. United States v. Grassi, 616 F.2d 1295, 1300 (5th Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 363, 66 L.Ed.2d 220 (1980); United States v. James, 590 F.2d at 578. These requirements must be established by a preponderance of independent evidence. United States v. Grassi, 616 F.2d at 1300-01. Wilson does not identify any specific evidence in his claim of a James violation. His contention, though, seems to be directed generally at the testimony of Robert Earl Turner. Regardless of the evidence to which Wilson is referring, however, we reject his contention that the rule of James was violated. James applies only to hearsay statements of coconspirators. See United States v. Grassi, 616 F.2d at 1300. None of the evidence upon which we rely to uphold Wilson’s conspiracy conviction was hearsay. Instead, the evidence involved the witnesses’ observations and personal knowledge of the acts of and arrangements between Wilson, Counter, and other persons. We therefore reject Wilson’s James claim. 2. Possession Count Wilson next challenges his conviction for possession of heroin with intent to" }, { "docid": "15661819", "title": "", "text": "statements of cocon-spirators. The mantle of priming responsibility is placed squarely on the shoulders of the district court which must determine the admissibility vel non of the challenged statements. We spoke to the purpose of the James hearing in our recent decision in United States v. Grassi, 616 F.2d 1295, 1300 (5th Cir. 1980), in these words: The purpose of the James hearing is to establish the existence, or nonexistence, of the predicates for the admission of a coconspirator’s extrajudicial declaration before the declaration is made known to the jury. To be admissible, the extrajudicial statement must have been made (1) by one who conspired with the party against whom the statement is offered, (2) during the course of the conspiracy, Fed.R.Evid. 801(d)(2)(E). Under James the responsibility for making these findings rests exclusively with the judge. The conclusion obviously reached by the district court was that the evidence introduced at the James hearing reflected that Perry might have been aware of an illegal plan by the others but it did not, perforce, make him a part of the conspiracy. As we noted in Grassi, id. at 1301: It is a cardinal rule of conspiracy law that one does not become a conspirator simply by virtue of knowledge of a conspiracy and association with conspirators . The essence of conspiracy is the agreement to engage in concerted unlawful activity. To connect the defendant to a conspiracy, the prosecution must demonstrate that the defendant agreed with others to join the conspiracy and participate in the achievement of the illegal objective. The district court concluded that the government had not carried its burden. The district court’s factual findings are not clearly erroneous. Its legal conclusions are not incorrect. In reaching this decision we do as the district court did and restrict our review to the evidence presented to the court at the hearing on October 17, 1979. We specifically decline the government’s in vitation to consider evidence presented at the subsequent trial of Henry. Perry was not present and his counsel did not participate in Henry’s trial. That trial may not be considered" } ]

[ { "docid": "16267164", "title": "", "text": "Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Here, as in Maricopa County, it is self-evident that Spokane’s asserted interest would be achieved less effectively absent the Ordinances. See 336 F.3d at 1169. The crux of World Wide’s argument is that, because Spokane’s studies do not deal exclusively with retail-only stores, the City impermissibly relied on “shoddy datafand] reasoning” to justify the Ordinances. Alameda Books, 535 U.S. at 438, 122 S.Ct. 1728 (plurality opinion). World Wide relies principally on Encore Videos, Inc. v. City of San Antonio, 330 F.3d 288 (5th Cir.) (per curiam), cert. denied, — U.S.—, 124 S.Ct. 466, 157 L.Ed.2d 372 (2003), to support its argument. The Encore Videos court, noting that “[a] time, place, and manner regulation meets the narrow tailoring standard if it ‘targets and eliminates no more than the exact source of the evil it seeks to remedy,’ ” id. at 293 (quoting Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988)), found San Antonio’s re-zoning of adult stores unconstitutional because the studies on which the city relied “either entirely exclude[d] establishments that provide only take-home videos and books ... or inelude[d] them but [did] not differentiate the data collected from such businesses from evidence collected from enterprises that provide on-site adult entertainment,” id. at 294-95. Hoping to repeat Encore Videos’ success, World Wide presented the district court with an extensive study concluding that problems with increased crime rates and decreased property value were limited to the neighborhood around a store that has preview booths for on-site viewing. Notwithstanding its proffer, World Wide’s reliance on Encore Videos is misplaced. In Encore Videos, San Antonio apparently relied only on other cities’ studies to justify its ordinance. See id. at 295. Here, Spokane relied on a wide variety of evidence, including studies, police records, and citizen testimony. Further, in this case we can assume, but need not decide, that the distinction between retail-only stores and stores with preview booths is constitutionally relevant. The Ordinances still survive World Wide’s challenge because much of the citizen testimony concerned" } ]

[ { "docid": "12273062", "title": "", "text": "and indicated as being off-limits to minors. Sioux City Munioipal Code 25.04.020(A-2)(c), Defendants’ Summary Judgment Appendix at 9 (emphasis added). Under this ordinance, “substantial” was defined to mean “more than twenty-five percent of the book, periodical, magazine or video inventory are [sic] distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.” Id. at 25.04.02(A-2)(i). Thus, this ordinance defined “adult entertainment businesses” by application of a “25-per-cent rule,” under which businesses with twenty-five percent or more of their media stock-in-trade in “adult” media were “adult entertainment businesses,” and consequently, were banned from general commercial zones of Sioux City. b. Ordinance amendments redefining “adult entertainment businesses” Prior to setting up its store in Sioux City, Doctor John’s representatives had some contact with the City Attorney concerning zoning requirements for the intended location of the Doctor John’s store in Sioux City in the course of which Doctor John’s representatives indicated a willingness to adhere to the then-existing “25-percent -rule.” See Plaintiffs Complaint, Exhibit C (on-line copy of Sioux City Journal article dated November 11, '2003); Plaintiffs Complaint Exhibit B (Request For City Council Action for November 10, 2003, meeting). However, before Doctor John’s could complete preparations to open its store in Sioux City, Sioux City’s zoning requirements for “adult entertainment businesses” underwent significant amendment. Specifically, on October 27, 2003, the City Council for the City of Sioux City passed Ordinance 2003-000953, which imposed a moratorium on the opening of any “adult” businesses up to and including January 5, 2004. Defendants’ Summary Judgment Appendix at 21. In a newspaper article published November 11, 2003, the City Attorney, James Abshier, was quoted as saying, “What prompted [the moratorium] was some discussion I had with Doctor John’s representatives” in which those representatives “told me they would be happy to live with the 25 percent limitation instead of stocking their business with all adult items.” Plaintiffs Complaint, Exhibit C. Similarly, a “Request For City Council Action” from Mr. Abshier, dated November 10, 2003, indicates that Doctor John’s had represented that its store would comply with the" }, { "docid": "19939285", "title": "", "text": "“a municipality may rely on any evidence that is ‘reasonably believed to be relevant’ for demonstrating a connection between speech and a substantial, independent government interest” (quoting City of Renton, 475 U.S. at 51-52, 106 S.Ct. 925)). However, these studies do not support the city’s extensive regulation of sexually oriented businesses. The studies either entirely exclude establishments that provide only take-home videos and books (as is the case with the Seattle study) or include them but do not differentiate the data collected from such businesses from evidence collected from enterprises that provide on-site adult entertainment — as may have been the case with the Austin and Garden Grove studies. Off-site businesses differ from on-site ones, because it is only reasonable to assume that the former are less likely to create harmful secondary effects. If consumers of pornography cannot view the materials at the sexually oriented establishment, they are less likely to linger in the area and engage in public alcohol consumption and other undesirable activities. See World Wide Video, Inc. v. City of Tukwila, 117 Wash.2d 382, 816 P.2d 18, 21 (1991) (“[The city] has not shown that adult businesses with predominantly ‘take-home’ merchandise (which clearly are covered by the ordinance) have the same harmful secondary effects traditionally associated with adult movie theaters and peep shows.... ”). But see Z.J. Gifts, L.L.C. v. City of Aurora, 136 F.3d 683, 687 (10th Cir.1998) (holding, without explaining why, that the on-site/off-site distinction is immaterial, because “the record fully supports the city’s regulation of sexually oriented businesses providing both on- and off-site viewing of sexually explicit materials”); ILQ Inn, Inc. v. City of Rochester, 25 F.3d 1413, 1418 (8th Cir.1994) (rejecting the distinction because “that simply is not the law,” without giving more than a cursory explanation why). Given the expansive reach of the ordinance in the instant case, we must require at least some substantial evidence of the secondary effects of establishments that sell adult products solely for off-site consumption. See Alameda Books, 535 U.S. at 438, 122 S.Ct. 1728 (“The municipality’s evidence must fairly support the municipality’s rationale for its ordinance.”)." }, { "docid": "19939286", "title": "", "text": "Wash.2d 382, 816 P.2d 18, 21 (1991) (“[The city] has not shown that adult businesses with predominantly ‘take-home’ merchandise (which clearly are covered by the ordinance) have the same harmful secondary effects traditionally associated with adult movie theaters and peep shows.... ”). But see Z.J. Gifts, L.L.C. v. City of Aurora, 136 F.3d 683, 687 (10th Cir.1998) (holding, without explaining why, that the on-site/off-site distinction is immaterial, because “the record fully supports the city’s regulation of sexually oriented businesses providing both on- and off-site viewing of sexually explicit materials”); ILQ Inn, Inc. v. City of Rochester, 25 F.3d 1413, 1418 (8th Cir.1994) (rejecting the distinction because “that simply is not the law,” without giving more than a cursory explanation why). Given the expansive reach of the ordinance in the instant case, we must require at least some substantial evidence of the secondary effects of establishments that sell adult products solely for off-site consumption. See Alameda Books, 535 U.S. at 438, 122 S.Ct. 1728 (“The municipality’s evidence must fairly support the municipality’s rationale for its ordinance.”). Otherwise, even ordinary bookstores and video stores with adult sections could be subjected to regulation that restricts their First Amendment rights without evidence that they cause “secondary effects.” In order to meet the narrow tailoring requirement, the city was required to provide at least some substantial evidence of secondary effects specific to adult businesses that sell books or videos solely for off-site entertainment. See Ward, 491 U.S. at 799, 109 S.Ct. 2746 (holding that government “may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals”). Because there is no such evidence in the record, we must strike down the zoning provision of Ordinance # 87443. III. A. Under FW/PBS, 493 U.S. at 227-28, 110 S.Ct. 596, a content-neutral “licensing scheme” for expression that “does not present the grave ‘dangers of a censorship system’ ” must have two “essential” procedural “safeguards”: “[T]he licensor must make the decision whether to issue the license within a specified and reasonable time period during which the" }, { "docid": "17605293", "title": "", "text": "the regulations failed to leave a sufficient number of alternative locations for already existing sexually oriented businesses, the city amended the ordinances to identify specific parcels of land upon which sexually oriented businesses may locate. Reliable Consultants, Inc., d/b/a “Dreamers” (hereinafter “Reliable”) is an off-site store, meaning that it sells video tapes, DVD’s, magazines, and other print materials, but that none of the materials can be viewed or consumed on the premises, and the store offers no live entertainment, viewing booths, or theaters. After finding the ordinances were content neutral, the district court relied on Encore Videos, Inc. v. City of San Antonio, 330 F.3d 288 (5th Cir.2003), to find that the City’s evidence of secondary effects failed to show that the ordinances were narrowly tailored to further a substantial government interest. The court declined to consider additional evidence Kennedale offered, and granted Reliable’s motion for a permanent injunction. Kennedale appealed. II. STANDARD OF REVIEW We review a district court’s summary judgment ruling and other legal issues de novo. N.W. Enters. Inc. v. City of Houston, 352 F.3d 162, 172 (5th Cir.2003). We review a district court’s factual findings for clear error. Kona Tech. Corp. v. S. Pac. Transp. Co., 225 F.3d 595, 601 (5th Cir.2000). The Supreme Court’s admonition that cities not justify ordinances by relying on “shoddy data or reasoning,” City of Los Angeles v. Alameda Books, 535 U.S. 425, 438, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (plurality opinion), requires factual findings, but turns on the legal interpretation of what the Supreme Court meant by “shoddy.” Therefore, we review a district court’s findings as to the existence of a city’s evidence for clear error, but we review de novo whether that evidence falls within the Supreme Court’s admonition. III. DISCUSSION “Zoning regulations restricting the location of adult entertainment businesses are considered time, place, and manner restrictions ... if they do not ban [adult-entertainment] businesses throughout the whole of a jurisdiction and are ‘designed to combat the undesirable secondary effects of such businesses’ rather than to restrict the content of their speech per se.” Encore Videos, 330 F.3d" }, { "docid": "17605296", "title": "", "text": "1728. However, “[t]his is not to say that a municipality can get away with shoddy data or reasoning. The municipality’s evidence must fairly support the municipality’s rationale for its ordinance.” Id. at 438, 122 S.Ct. 1728. On-site businesses (i.e., adult theaters or strip clubs) pose a greater threat of secondary effects than off-site sexually oriented businesses (i.e., adult bookstores). Therefore, a city that enforces an ordinance meant to prevent harmful secondary effects associated with the operation of an off-site business must rely on evidence showing that off-site businesses, rather than the broader category of sexually oriented businesses that includes on-site businesses, cause harmful secondary effects. Encore Videos, 330 F.3d at 295 (requiring city to “provide at least some substantial evidence of secondary effects specific to adult businesses that sell books or videos solely for off-site entertainment” to meet narrow tailoring requirement). In Encore Videos, we invalidated San Antonio’s ordinance regulating sexually oriented businesses because the city failed to present adequate evidence showing a connection between off-site businesses and harmful secondary effects. San Antonio’s evidence consisted of three studies conducted in other cities showing a connection between sexually oriented businesses, without isolating off-site businesses and secondary effects. Encore Videos, 330 F.3d at 294-95. Those studies did not provide any information exclusive to off-site businesses, so a substantial portion of the ordinance’s burden on speech did not serve to advance its goals, and it failed the narrow tailoring prong. Id. at 295. This case differs from Encore Videos because Kennedale, unlike San Antonio, offers evidence that purports to show a connection between purely off-site businesses, or “bookstores,” and harmful secondary effects. To determine whether the ordinance at issue is narrowly tailored, we must determine whether Kennedale could reasonably believe that the evidence is relevant to show the requisite connection to harmful secondary effects. Alameda Books, 535 U.S. at 438, 122 S.Ct. 1728. In other words, we ask whether that evidence “fairly supports] the [city’s] rationale for its ordinance.” Id. Applying our holding from Encore Videos, Kennedale cannot reasonably believe its evidence is relevant unless it sufficiently segregates data attributable to off-site establishments" }, { "docid": "19939284", "title": "", "text": "San Antonio Ordinance # 87443 § 1(2). The city justifies this ordinance on the ground that it will reduce the adverse secondary effects (such as increased crime and the reduction of property values) of sexually oriented businesses. Therefore, in order to demonstrate that the ordinance is narrowly tailored, the city must show that the ordinance addresses these problems. To establish that Ordinance #87443 passes the narrow tailoring test, the city relies on three studies of the secondary effects of adult businesses, all conducted in other cities: one in Seattle, Washington, in 1989, another in Austin, Texas, in 1986, and the third in Garden Grove, California, in 1991. The city is “entitled to rely on the experiences ... of other cities ... so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.” City of Renton, 475 U.S. at 51-52, 106 S.Ct. 925; see City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (confirming that “a municipality may rely on any evidence that is ‘reasonably believed to be relevant’ for demonstrating a connection between speech and a substantial, independent government interest” (quoting City of Renton, 475 U.S. at 51-52, 106 S.Ct. 925)). However, these studies do not support the city’s extensive regulation of sexually oriented businesses. The studies either entirely exclude establishments that provide only take-home videos and books (as is the case with the Seattle study) or include them but do not differentiate the data collected from such businesses from evidence collected from enterprises that provide on-site adult entertainment — as may have been the case with the Austin and Garden Grove studies. Off-site businesses differ from on-site ones, because it is only reasonable to assume that the former are less likely to create harmful secondary effects. If consumers of pornography cannot view the materials at the sexually oriented establishment, they are less likely to linger in the area and engage in public alcohol consumption and other undesirable activities. See World Wide Video, Inc. v. City of Tukwila, 117" }, { "docid": "16355712", "title": "", "text": "statute in question, however, covers much more than just sexually oriented businesses and far more than just the nude or semi-nude dancing often found in such establishments. Section 18B-1005.1 prohibits “[a]ny conduct or entertainment that includes or simulates sexual intercourse ...,” and additional conduct otherwise referred to as erotic dancing, without reference to the amount of clothing involved. Evidence of secondary effects specific to these prohibited activities is required to meet the narrow tailoring requirement. Alameda Books, 535 U.S. at 438, 122 S.Ct. 1728. As stated, the Defendants have presented no such evidence. A similar situation was present in Encore Videos, Inc. v. City of San Antonio, where the city of San Antonio enacted a zoning ordinance that covered both sexually oriented businesses and any bookstore, novelty store, or video store that devoted over 20% of its inventory or floor space to sexually explicit materials. 330 F.3d 288, 295 (5th Cir.2003). The Fifth Circuit struck down the ordinance because San Antonio failed to provide substantial evidence related to the secondary effects “specific to adult businesses that sell books or videos solely for off-site entertainment.” Id. The studies relied upon by the General Assembly in enacting this ordinance were all focused on the secondary effects associated with nude or semi-nude dancing or adult entertainment. The Defendants failed to provide specific evidence of how these secondary effects related to the combination of clothed or non-nude erotic dancing and alcohol. Such evidence is necessary to determine whether a content-neutral restriction on speech passes intermediate scrutiny under O’Brien. See e.g. R.V.S., 361 F.3d at 413 (“Simply, [the government] has not presented justification why it is essential to regulate such a wide universe of dance.”); Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988, 1002 (7th Cir.2002) (holding that an ordinance prohibiting the content of signs on sexually-oriented businesses be limited to the legal name of the enterprise was not narrowly tailored because “such a drastic restriction on signage cannot be sustained without some sort of evidentiary support”). Although the Defendants provided evidence sufficient to state a legitimate interest in regulating the type of nude or" }, { "docid": "3484333", "title": "", "text": "JERRY E. SMITH, Circuit Judge: I. Appellant Encore Videos, Inc. (“Encore Videos”), operates a sexually oriented retail video store in San Antonio, Texas. In April 1995, the city council enacted Ordinance # 82135, which forbids sexually oriented businesses from locating within 1000 feet of residential areas. Encore Videos’ store is within 1000 feet of a residential area, although separated by the Loop 410 highway. Encore Videos provides only sales for off-premises viewing; customers cannot view the videos at the store. In September 1997, Encore Videos sued, challenging the ordinance on First Amendment grounds. In response, the city amended and reenacted the ordinance to impose procedural safeguards required by FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). The new law, Ordinance # 87443, took effect in March 1998. Encore Videos filed an amended complaint challenging the new ordinance on federal and Texas state constitutional grounds. The district court granted the city’s motion for summary judgment and denied Encore Videos’. Encore Video [sic], Inc. v. City of San Antonio, No. Civ. A. SA-97CA1139FB, 2000 WL 33348240 (W.D.Tex. Oct.2, 2000). Encore Videos appeals, arguing that the ordinance offends by the First Amendment and the state Constitution. We reverse and remand. II. A. Before addressing the merits of the First Amendment claim, we must determine whether the ordinance should be analyzed as a prior restraint — as advocated by Encore Videos — or as a time, place, and manner regulation. As a general rule, “a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority,” is a presumptively unconstitutional “prior restraint.” Shuttles-worth v. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). Zoning regulations restricting the location of adult entertainment businesses are considered time, place, and manner regulations, however, if they do not ban them throughout the whole of a jurisdiction and are “designed to combat the undesirable secondary effects of such businesses” rather than to restrict the content of their speech per se. Relevant" }, { "docid": "832246", "title": "", "text": "require customers to leave the premises to view or use their purchases (“off-site” businesses). Next, it argues that it has put forward evidence sufficient to call the City’s rationale into question and thus invoke the Alameda Books burden-shifting scheme. We consider these arguments in turn. 1. On-site versus off-site businesses Dr. John’s primarily relies on the Fifth Circuit’s decision in Encore Videos, Inc. v. City of San Antonio, 330 F.3d 288 (5th Cir.2003). In that case, the court held that an ordinance which regulated both on-site and off-site adult businesses was not narrowly tailored because the City failed, as a threshold matter, to provide evidence that off-site businesses caused negative secondary effects. Id. at 294-95. However, as the district court noted, and as Encore Videos specifically acknowledges, see id. at 295, this circuit’s decision in Z.J. Gifts D-2 rejected the on-site/off-site distinction as a basis for striking down an adult business ordinance as an unconstitutional time/place/manner restriction. In determining whether the Z.J. Gifts D-2 ordinance was narrowly tailored towards a significant interest, we began by finding that the government’s interest in preventing secondary effects was not affected by the fact that the businesses it regulated included off-site adult businesses. 136 F.3d at 688. We then considered the plaintiffs’ argument that the provision was not narrowly tailored. We recognized that, although “time, place or manner regulations on protected speech must be narrowly tailored,” they “ ‘need not be the least restrictive or least intrusive means of doing so.’ ” Id. at 689 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 798, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)). This principle recognizes the judiciary’s limited role in reviewing content-neutral limitations on speech. “It is not [the court’s] function to appraise the wisdom of [the city’s] decision[.]” Renton, 475 U.S. at 52, 106 S.Ct. 925.... Instead, because legislative bodies are entitled to “reasonable inferences” suggested by the legislative record before them, ... the court simply determines whether the ordinance, as promulgated, “affects only categories of businesses reasonably believed to produce at least some of the unwanted secondary effects” the city seeks to" }, { "docid": "12273066", "title": "", "text": "evidence in the record, however, that Mr. Nelson conveyed his understanding or summaries of the studies he examined to members of the City Council of the City of Sioux City or to the City Attorney or conveyed the studies themselves to City Council members or to the City Attorney. Surprisingly, the studies themselves were never offered or admitted into evidence in the preliminary injunction proceedings. Although the parties do not appear to dispute that the subsequent amendments to the City of Sioux City’s ordinances were drafted by the City Attorney, there is no evidence that the City Attorney or the City Council members independently reviewed any similar studies or other evidence of the “secondary effects” of adult entertainment businesses at any time prior to amending Sioux City’s zoning ordinances. Mr. Nelson also testified that he did not draft the amended ordinances, nor was he privy to any discussions about the drafting of the amended ordinances, except to, a “very limited” degree. Despite the lack of evidence that the studies reviewed by Mr. Nelson were ever considered by any decision-makers, the City Council did undertake significant amendments to its zoning ordinances with regard to adult entertainment businesses at the end of the moratorium period. Unlike the moratorium amendment, the January 2004 amendments do not include by any statement of findings by the City Council or any explanation of the impetus or rationale for those amendments. Nevertheless, on January 5, 2004, the “sunset” date for the moratorium, the City Council adopted Ordinance 2004-0004, Section 1 of which provides, in pertinent part, as follows: A-2 “Adult Entertainment Business” means businesses which as a part of or in the process of delivering goods and services displays to its patrons specified sexual activities, specified anatomical areas though the use of adult media or male or female models, or offers for sale sexually oriented toys or novelties. The following are examples of adult entertainment business [sic] but the list is not to be considered exclusive: adult media store, adult motion picture theater, adult internet store, a sex shop, a video-viewing booth, a lingerie modeling studio or" }, { "docid": "17605295", "title": "", "text": "at 291 (quoting City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986)) (citing Lakeland Lounge v. Jackson, 973 F.2d 1255, 1257-58 (5th Cir.1992)). Time, place, and manner restrictions on speech violate the First Amendment unless they are content-neutral, are designed to serve a substantial governmental interest, do not unreasonably limit alternative avenues of communication, and are narrowly tailored. See Encore Videos, 330 F.3d at 291-92. Kennedale’s ordinances meet the narrow tailoring standard if they “target! ] and eliminate! ] no more than the exact source of the evil [they] seek! ] to remedy.” Encore Videos, 330 F.3d at 293; Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). Thus, an ordinance meant to deter property depreciation may only regulate businesses for which a connection to property depreciation can be demonstrated. To show that an ordinance advances its goals, a city “may rely on any evidence that is ‘reasonably believed to be relevant.’ ” Alameda Books, 535 U.S. at 438, 122 S.Ct. 1728. However, “[t]his is not to say that a municipality can get away with shoddy data or reasoning. The municipality’s evidence must fairly support the municipality’s rationale for its ordinance.” Id. at 438, 122 S.Ct. 1728. On-site businesses (i.e., adult theaters or strip clubs) pose a greater threat of secondary effects than off-site sexually oriented businesses (i.e., adult bookstores). Therefore, a city that enforces an ordinance meant to prevent harmful secondary effects associated with the operation of an off-site business must rely on evidence showing that off-site businesses, rather than the broader category of sexually oriented businesses that includes on-site businesses, cause harmful secondary effects. Encore Videos, 330 F.3d at 295 (requiring city to “provide at least some substantial evidence of secondary effects specific to adult businesses that sell books or videos solely for off-site entertainment” to meet narrow tailoring requirement). In Encore Videos, we invalidated San Antonio’s ordinance regulating sexually oriented businesses because the city failed to present adequate evidence showing a connection between off-site businesses and harmful secondary effects. San Antonio’s evidence consisted" }, { "docid": "12596455", "title": "", "text": "the city desires to regulate. Pap’s AM. 529 U.S. at 297, 120 S.Ct. 1382 (plurality opinion) (explaining that the city could “reasonably rely on the evidentiary foundation set forth in Renton and American Mini Theatres to the effect that secondary effects are caused by the presence of even one adult entertainment establishment in a given neighborhood”). The evidence relied upon by the City is more than adequate to establish the secondary effects regulated by the Ordinance. The record contains numerous studies evidencing the secondary effects of sexually oriented businesses. Moreover, we have previously affirmed the only two portions of the Ordinance plaintiffs specifically attack — the hour regulation and open-booth requirement. In Schultz v. City of Cumberland, an hour regulation similar to that imposed by the Ordinance was upheld by this court against a First Amendment challenge. 228 F.3d 831, 846 (7th Cir.2000) (upholding a portion of an ordinance “limiting the business hours for sexually oriented businesses to between 10 a.m. and midnight, Monday through Saturday.”). And we have also upheld open-booth requirements similar to the one in the Ordinance. See Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988, 1003-04 (7th Cir. 2002) (explaining that the open-booth requirement was a valid time, place, and manner restriction); Matney v. County of Kenosha, 86 F.3d 692 (7th Cir.1996) (same). To counter these decisions the plaintiffs simply nitpick at the relevance and reliability of the City’s studies, claiming that they are either too old or inapplicable because they discuss problems in other cities and not Gary. All of these arguments are without merit. Renton, 475 U.S. at 51-52, 106 S.Ct. 925; G.M. Enterprises, Inc. v. Town of St. Joseph, 350 F.3d 631, 639-40 (7th Cir.2003); Ben’s Bar, 316 F.3d at 725. Faced with our precedent and the City’s substantial evidentiary record, the plaintiffs present nothing of relevance. “Instead, [they] have simply asserted that the council’s evidentiary proof is lacking. In the absence of any reason to doubt it, the city’s expert judgment should be credited.” Pap’s A.M., 529 U.S. at 298, 120 S.Ct. 1382 (plurality opinion); see also Alameda Books, 535 U.S. at" }, { "docid": "12273067", "title": "", "text": "considered by any decision-makers, the City Council did undertake significant amendments to its zoning ordinances with regard to adult entertainment businesses at the end of the moratorium period. Unlike the moratorium amendment, the January 2004 amendments do not include by any statement of findings by the City Council or any explanation of the impetus or rationale for those amendments. Nevertheless, on January 5, 2004, the “sunset” date for the moratorium, the City Council adopted Ordinance 2004-0004, Section 1 of which provides, in pertinent part, as follows: A-2 “Adult Entertainment Business” means businesses which as a part of or in the process of delivering goods and services displays to its patrons specified sexual activities, specified anatomical areas though the use of adult media or male or female models, or offers for sale sexually oriented toys or novelties. The following are examples of adult entertainment business [sic] but the list is not to be considered exclusive: adult media store, adult motion picture theater, adult internet store, a sex shop, a video-viewing booth, a lingerie modeling studio or model studio. a. “Adult Internet Store” means a store that offers its patrons with or without charge a computer with internet access for the purpose of accessing internet sites or that permits patrons to access internet sites that are characterized as displaying hard-core material or specified sexual activities. b. “Adult Media” means magazines, books, videotapes, movies, slides, cd-roms or other devices used to record computer images, or other media that are distinguished or characterized by their emphasis on matter depicting, describing, or relating-to hard-core material. c. “Adult Media Store” means an establishment that rents and /or sells media, and that meets any of the following three tests: (1) 25 percent or more of the gross public floor area is devoted to adult media. (2) 25 percent or more of the stock-in-trade consists of adult media. (3) It advertises or holds itself out in any forum as “XXX,’’adult,” “sex,” or otherwise as a sexually oriented business other than an adult media store, or adult motion picture theater. d. “Adult Motion Picture Theater” means an establishment emphasizing" }, { "docid": "16161986", "title": "", "text": "Court has stated that “[a] city’s ‘interest in attempting to preserve the quality of urban life is one that must be accorded high respect.’” The Tenth Circuit has recognized the “significant” interest cities have in regulating sexually oriented businesses. Nevertheless, Doctor John’s wishes this court to distinguish between the City’s interest in regulating sexually oriented business which offer on-site entertainment versus those which only offer off-site entertainment. The Fifth Circuit made this distinction in Encore Videos, Inc. v. City of San Antonio. However, in Z.J. Gifts D-2, the Tenth Circuit specifically rejected this distinction as “constitutionally irrelevant” and stated that its analysis would be “unaffected” by such a distinction. Moreover, a review of the report of many of the studies relied upon by the City reveals that the distinction has apparently not been considered significant. Nor has Doctor John’s made any serious showing that the studies relied upon by the City were not appropriate. The Ordinance cites eighteen studies from different cities reviewed by the City, as well as other materials. The dates of the studies reveal that they are not so old as to be outdated. Five of the studies were done within the last decade. It is clear from the record that the City “reasonably believed” the studies were “relevant to the problem” the .city was . addressing. The detailed findings of the Ordinance reveal that these studies were relied upon in drafting the licensing scheme. The Ordinance also cites a large body of case law where courts have accepted the findings of such studies. Indeed, this issue has been litigated so often now that the secondary effects of sexually oriented businesses seem to be well-established and the requirement that cities find and rely on such studies may now be easily satisfied. At any rate, it is clear that the City complied with this requirement and was justified in enacting the Ordinance based on the hearings it held and its review of the studies. It is well established in the case law that cities are not required to do their own studies but may rely on studies from" }, { "docid": "16161985", "title": "", "text": "Ordinance then sets forth a number of findings, based on the studies listed, concerning the secondary effects of sexually oriented businesses. The court thus finds that the Ordinance is aimed at the secondary effects of sexually oriented businesses and should therefore be reviewed as a content-neutral regulation subject to intermediate scrutiny. Content-neutral time-place-manner restrictions are reviewed under the framework set forth by the Supreme Court in City of Renton v. Playtime Theatres, Ine. Under Renton, ordinances such as this one survive constitutional scrutiny if (1) they are narrowly tailored to serve a significant government interest, and (2) they leave open “reasonable alternative avenues of communication.” Doctor John’s does not contend that the Ordinance does not leave open reasonable alternative avenues of communication. Indeed, Doctor John’s itself is free to obtain a sexually oriented business license and sell as much adult material as it chooses in the very location it now occupies. The only issue before the court is whether the Ordinance is narrowly tailored to prevent the secondary effects of sexually oriented businesses. The Supreme Court has stated that “[a] city’s ‘interest in attempting to preserve the quality of urban life is one that must be accorded high respect.’” The Tenth Circuit has recognized the “significant” interest cities have in regulating sexually oriented businesses. Nevertheless, Doctor John’s wishes this court to distinguish between the City’s interest in regulating sexually oriented business which offer on-site entertainment versus those which only offer off-site entertainment. The Fifth Circuit made this distinction in Encore Videos, Inc. v. City of San Antonio. However, in Z.J. Gifts D-2, the Tenth Circuit specifically rejected this distinction as “constitutionally irrelevant” and stated that its analysis would be “unaffected” by such a distinction. Moreover, a review of the report of many of the studies relied upon by the City reveals that the distinction has apparently not been considered significant. Nor has Doctor John’s made any serious showing that the studies relied upon by the City were not appropriate. The Ordinance cites eighteen studies from different cities reviewed by the City, as well as other materials. The dates of the" }, { "docid": "832245", "title": "", "text": "adult business, it may not avoid time, place and manner regulation that has been justified by studies, of the secondary effects of reasonably similar businesses.”) (emphasis added). Thus, without more, the City’s reliance on the “package” of studies commonly invoked to justify SOB ordinances is quite permissible to meet the City’s slight initial burden, even if the studies do not address SOB’s precisely like Dr. John’s. Alameda Books, 535 U.S. at 438, 122 S.Ct. 1728 (“[A] municipality may rely on any evidence that is ‘reasonably believed to be relevant’ ”); id. at 451, 122 S.Ct. 1728 (Kennedy, J., concurring) (noting that “very little evidence is required” to satisfy city’s threshold burden); see also City of Renton, 475 U.S. at 51-52, 106 S.Ct. 925. Dr. John’s makes two.arguments beyond its basic contention that it is a different kind of SOB. First, it claims that the ordinance is, not narrowly tailored to serve a significant government interest because it fails .to make a distinction between businesses which have entertainment on the premises (“on-site” businesses) and those which require customers to leave the premises to view or use their purchases (“off-site” businesses). Next, it argues that it has put forward evidence sufficient to call the City’s rationale into question and thus invoke the Alameda Books burden-shifting scheme. We consider these arguments in turn. 1. On-site versus off-site businesses Dr. John’s primarily relies on the Fifth Circuit’s decision in Encore Videos, Inc. v. City of San Antonio, 330 F.3d 288 (5th Cir.2003). In that case, the court held that an ordinance which regulated both on-site and off-site adult businesses was not narrowly tailored because the City failed, as a threshold matter, to provide evidence that off-site businesses caused negative secondary effects. Id. at 294-95. However, as the district court noted, and as Encore Videos specifically acknowledges, see id. at 295, this circuit’s decision in Z.J. Gifts D-2 rejected the on-site/off-site distinction as a basis for striking down an adult business ordinance as an unconstitutional time/place/manner restriction. In determining whether the Z.J. Gifts D-2 ordinance was narrowly tailored towards a significant interest, we began by" }, { "docid": "12273063", "title": "", "text": "Sioux City Journal article dated November 11, '2003); Plaintiffs Complaint Exhibit B (Request For City Council Action for November 10, 2003, meeting). However, before Doctor John’s could complete preparations to open its store in Sioux City, Sioux City’s zoning requirements for “adult entertainment businesses” underwent significant amendment. Specifically, on October 27, 2003, the City Council for the City of Sioux City passed Ordinance 2003-000953, which imposed a moratorium on the opening of any “adult” businesses up to and including January 5, 2004. Defendants’ Summary Judgment Appendix at 21. In a newspaper article published November 11, 2003, the City Attorney, James Abshier, was quoted as saying, “What prompted [the moratorium] was some discussion I had with Doctor John’s representatives” in which those representatives “told me they would be happy to live with the 25 percent limitation instead of stocking their business with all adult items.” Plaintiffs Complaint, Exhibit C. Similarly, a “Request For City Council Action” from Mr. Abshier, dated November 10, 2003, indicates that Doctor John’s had represented that its store would comply with the “25-percent rule” imposed by the existing ordinances and suggested that a moratorium would be appropriate “[t]oo preserve the integrity of the review process.” Plaintiffs Complaint, Exhibit B. The moratorium amendment itself indicates that it was based on the City Council’s findings that it had been advised and believed that the existing ordinance was “incomplete and inadequate in that it fails to regulate all aspects of the adult entertainment business,” that the existing ordinance inadequately regulated the locations where adult entertainment businesses might locate, and that it was in the public interest to study zoning regulations to ensure their effectiveness, validity, and constitutionality. Defendants’ Summary Judgment Appendix at 21. Ordinance 2003-000953 was amended on November 10, 2003, by Ordinance 2003-000985, but that amendment did not alter the “sunset” date of January 5, 2004, for the moratorium. Senior Planner for the City of Sioux City, Brian Nelson, the only representative of the City of Sioux City to testify at the preliminary injunction hearing, testified that “when this first came up,” he was “asked to review a number" }, { "docid": "12596454", "title": "", "text": "government interest when the “municipality can demonstrate a connection between the speech regulated by the ordinance and the secondary effects that motivated the adoption of the ordinance.” R.V.S., 361 F.3d at 408 (quoting Ben’s Bar, 316 F.3d at 724). “In evaluating the sufficiency of this connection, courts must ‘examine evidence concerning regulated speech and secondary effects.’ ” Id. (quoting Alameda Books, 535 U.S. at 441, 122 S.Ct. 1728). “The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.” Renton, 475 U.S. at 51-52, 106 S.Ct. 925; see also Alameda Books, 535 U.S. at 451, 122 S.Ct. 1728 (Kennedy, J. concurring) (“[W]e have consistently held that a city must have latitude to experiment, at least at the outset, and that very little evidence is required.”). A city may rely upon previous judicial opinions evaluating secondary effects the city desires to regulate. Pap’s AM. 529 U.S. at 297, 120 S.Ct. 1382 (plurality opinion) (explaining that the city could “reasonably rely on the evidentiary foundation set forth in Renton and American Mini Theatres to the effect that secondary effects are caused by the presence of even one adult entertainment establishment in a given neighborhood”). The evidence relied upon by the City is more than adequate to establish the secondary effects regulated by the Ordinance. The record contains numerous studies evidencing the secondary effects of sexually oriented businesses. Moreover, we have previously affirmed the only two portions of the Ordinance plaintiffs specifically attack — the hour regulation and open-booth requirement. In Schultz v. City of Cumberland, an hour regulation similar to that imposed by the Ordinance was upheld by this court against a First Amendment challenge. 228 F.3d 831, 846 (7th Cir.2000) (upholding a portion of an ordinance “limiting the business hours for sexually oriented businesses to between 10 a.m. and midnight, Monday through Saturday.”). And we have also upheld open-booth requirements similar to" }, { "docid": "17605297", "title": "", "text": "of three studies conducted in other cities showing a connection between sexually oriented businesses, without isolating off-site businesses and secondary effects. Encore Videos, 330 F.3d at 294-95. Those studies did not provide any information exclusive to off-site businesses, so a substantial portion of the ordinance’s burden on speech did not serve to advance its goals, and it failed the narrow tailoring prong. Id. at 295. This case differs from Encore Videos because Kennedale, unlike San Antonio, offers evidence that purports to show a connection between purely off-site businesses, or “bookstores,” and harmful secondary effects. To determine whether the ordinance at issue is narrowly tailored, we must determine whether Kennedale could reasonably believe that the evidence is relevant to show the requisite connection to harmful secondary effects. Alameda Books, 535 U.S. at 438, 122 S.Ct. 1728. In other words, we ask whether that evidence “fairly supports] the [city’s] rationale for its ordinance.” Id. Applying our holding from Encore Videos, Kennedale cannot reasonably believe its evidence is relevant unless it sufficiently segregates data attributable to off-site establishments from the data attributable to on-site establishments. Encore Videos, 330 F.3d at 294-95. Kennedale’s evidence consisted of studies from nine cities, as well as an opinion survey of land use appraisers conducted by the city’s attorney, and citizen commentary from public meetings. Seven of Kenne-dale’s nine studies from other cities fail to differentiate between on-site and off-site businesses. The 1984 Indianapolis and 1986 Oklahoma City studies, however, included surveys of real estate appraisers that focused strictly on “adult bookstores.” The overwhelming majority of survey re spondents in both studies predicted that the presence of an adult bookstore would negatively affect real estate value in the surrounding area. The Indianapolis survey, conducted by the City of Indianapolis in conjunction with Indiana University School of Business, Division of Research, polled 20% of the national membership of the American Institute of Real Estate Appraisers. Eighty percent of the respondents predicted that an adult bookstore would negatively impact residential property values, and seventy-two percent believed commercial property value would also be negatively effected. The Oklahoma City study, which surveyed" }, { "docid": "17605292", "title": "", "text": "BENAVIDES, Circuit Judge: Kennedale, Texas, appeals the district court’s grant of summary judgment. We reverse and remand. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY This appeal raises a single question: Does the evidence offered by the city of Kennedale sufficiently support its ordinance regulating sexually oriented businesses? In 1999, Kennedale annexed land that included multiple sexually oriented businesses, thereby subjecting those businesses to the city’s ordinances. The ordinances prohibit the operation of sexually oriented businesses within 800 feet of churches, schools, residences, day care centers, parks, and other sexually oriented businesses, as well as within specified overlay districts. Additionally, the ordinances require sexually oriented businesses to obtain a license to operate. In justifying its ordinances, Kennedale relied on (1) studies from nine other cities, (2) an opinion survey of land use appraisers conducted by the city’s attorney, and (3) citizen commentary from public meetings, all regarding the harmful secondary effects of sexually oriented businesses on surrounding land uses. Following annexation, the ordinances allowed affected businesses three years to recoup their investments and relocate. Following criticism that the regulations failed to leave a sufficient number of alternative locations for already existing sexually oriented businesses, the city amended the ordinances to identify specific parcels of land upon which sexually oriented businesses may locate. Reliable Consultants, Inc., d/b/a “Dreamers” (hereinafter “Reliable”) is an off-site store, meaning that it sells video tapes, DVD’s, magazines, and other print materials, but that none of the materials can be viewed or consumed on the premises, and the store offers no live entertainment, viewing booths, or theaters. After finding the ordinances were content neutral, the district court relied on Encore Videos, Inc. v. City of San Antonio, 330 F.3d 288 (5th Cir.2003), to find that the City’s evidence of secondary effects failed to show that the ordinances were narrowly tailored to further a substantial government interest. The court declined to consider additional evidence Kennedale offered, and granted Reliable’s motion for a permanent injunction. Kennedale appealed. II. STANDARD OF REVIEW We review a district court’s summary judgment ruling and other legal issues de novo. N.W. Enters. Inc. v. City of" } ]

[ { "docid": "22649739", "title": "", "text": "estate. Petitioner was granted a discharge in bankruptcy in October 1953, and the case was closed in June 1954. In 1957, petitioner filed claims for refund of income taxes paid for the years 1953 and 1954, which resulted in his being allowed a credit for income taxes and interest in respect of those years. On March 7,1958, the Director of Internal Revenue applied the entire 1953 credit and part of the 1954 credit to the balance of the assessment of the withholding and F. I. C. A. taxes owed for 1951, plus interest to date — including interest which had accrued during the period between the filing of petitioner’s petition in bankruptcy (July 6, 1953) and the date of payment (March 7, 1958). This post-petition interest, which totals about $795, is the subject of the present controversy. Petitioner did not question the Director’s right to collect from assets acquired by petitioner after bankruptcy the unpaid principal of the tax debt and the pre-petition interest. However, contending that he was not liable for interest accruing on the assessment after his petition in bankruptcy was filed, petitioner brought suit in the Federal District Court for the Southern District of California for refund of that portion of the interest. The District Court held that petitioner’s personal liability for post-petition interest on the unpaid taxes was not discharged by the bankruptcy proceedings, and the Court of Appeals for the Ninth Circuit affirmed. Due to an apparent conflict between circuits and the potentially recurring nature of the question involved, we granted certiorari, 375 U. S. 920. We affirm the decision below. Section 17 of the Federal Bankruptcy Act, 11 U. S. C. § 35, provides in relevant part: “A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as (1) are due as a tax levied by the United States . . . .” It is undisputed that, under § 17, petitioner remained personally liable after his discharge for that part of the principal amount of the tax debt and pre-petition interest" } ]

[ { "docid": "16575456", "title": "", "text": "of § 502 is to ensure the fair allocation of assets between creditors, we fail to see how the manner in which ECMC applies estate payments, once allocated, creates any unfairness to other creditors or complicates the administration of the bankruptcy estate so as to implicate the policies underlying § 502 that were articulated by the Court in Bruning. Cf. Hanna, 872 F.2d at 830-31 (8th Cir.1989) (stating, in Chapter 7 context, that the general rule “ ‘disallowing’ the payment of postpetition interest out of the bankruptcy estate is a rule of administrative convenience and fairness to all creditors,” and “when concerns for administrative convenience and fairness are not present, postpetition interest will be ‘allowed’ ”). We therefore conclude that § 502 does not prohibit ECMC from applying the Debtors’ estate payments to the postpetition interest on their student loan debts. III. In conclusion, 11 U.S.C.A. §§ 523(a)(8) and 502 provide that absent a finding of undue hardship, student loan debt is non-dischargeable and that a creditor in ECMC’s position may file its claim with the bankruptcy estate only for prepetition interest and principal balance. Further, under 34 C.F.R. § 682.404(f), a creditor generally must apply student loan payments first to payment of interest before loan principal. Because § 502 only addresses ECMC’s ability to file proofs of claim for postpetition interest and not its ability to apply estate payments to accrued interest (including postpetition interest) once those claims are paid by the estate, § 502 does not provide a basis for concluding that ECMC may not apply the Debtors’ estate payments to the postpetition interest on their nondischargeable student loan debts. REVERSED. . The order of discharge, of course, did not encompass nondischargeable debts. When a debtor satisfies its payments under a confirmed plan, \"the bankruptcy court discharges all debts provided for by the plan, except those specified by § 523(a) as nondischargeable,” such as the Kielisches’ student loan debts. In re Cousins, 209 F.3d 38, 40 (1st Cir.2000). \"The debtor remains personally responsible for any debt not discharged in bankruptcy.” Id. . Because of an incorrect address, the" }, { "docid": "16575436", "title": "", "text": "OPINION WILLIAMS, Circuit Judge: This consolidated appeal, which involves the cases of Kurt and Jean Kielisch and David and Elizabeth Lawrence (collectively, the Debtors), requires us to resolve whether their creditor, Educational Credit Management Corporation (ECMC), is precluded from applying Chapter 13 plan payments from the Debtors’ bankruptcy estates to postpetition interest on their nondischargeable student loan debts. The bankruptcy courts in the Debtors’ cases each held that ECMC violated 11 U.S.C.A. § 502(b)(2) (West 1993) by applying the Debtors’ Chapter 13 plan payments to post-petition interest, and the district courts each affirmed. Because we conclude that creditors are not precluded from applying bankruptcy estate payments to accrued postpetition interest on nondischargeable student loan debts, we reverse. I. A. The Kielisches On December 9, 1991, Kurt and Jean Kielisch submitted a Chapter 13 petition for relief pursuant to the United States Bankruptcy Code. On February 21, 1992, Great Lakes Higher Education Guaranty Corporation (Great Lakes) filed proofs of claim for the Kielisches’ student loans, one in the amount of $10,743.15 for Kurt Kielisch and one in the amount of $12,204.42 for Jean Kielisch. The proofs of claim included only principal and pre-petition interest. On March, 30, 1992, the Kielisches filed an amended Chapter 13 plan, replacing the December 1991 plan. The amended plan, which was confirmed on June 12, 1992, provided that “the accepted unsecured claims of Great Lakes Higher Education, in the amounts of $12,095.35 and $10,629.00, will be paid in full through the Trustee.” (J.A. at 46 .) Pursuant to the amended plan, the trustee paid Great Lakes $10,887 .63 for Kurt Kielisch and $12,956.43 for Jean Kielisch, and on June 6, 1997, the bankruptcy court entered an order discharging the Kielisch-es. After the discharge, ECMC, the assign-ee of the Kielisches’ student loans, pursued collection efforts against them. ECMC asserted that, notwithstanding the payments made under the amended plan and the discharge order, its claims were never fully paid because postpetition interest continued to accrue during the pendency of the Chapter 13 proceedings. ECMC also argued that it was proper to apply plan payments first to accrued postpetition" }, { "docid": "13978130", "title": "", "text": "of whether post-petition interest on a student loan is dischargeable because Great Lakes has waived its right to collect such interest by failing to object to the plan's discharge provision or to appeal the confirmation order, the clear weight of authority appears to support the BAP’s conclusion that post-petition interest on a student loan debt is nondischargeable. Several other circuits have held that Bruning remains good law after the enactment of the Bankruptcy Code. See Johnson v. IRS (In re Johnson), 146 F.3d 252, 260 (5th Cir.1998); Leeper v. Pennsylvania Higher Educ. Assistance Agency, 49 F.3d 98, 101-02 (3d Cir.1995); Fullmer v. United States (In re Fullmer), 962 F.2d 1463, 1468 (10th Cir.1992); In re Burns, 887 F.2d 1541, 1543 (11th Cir.1989); Hanna v. United States (In re Hanna), 872 F.2d 829, 831 (8th Cir.1989). Furthermore, several courts have applied Bruning in the context of student loans to hold that post-petition interest on student loans is non-dischargeable. See Leeper, 49 F.3d at 105; Wagner v. Ohio Student Loan Comm’n (In re Wagner), 200 B.R. 160, 163 (Bankr.N.D.Ohio 1996); In re Sullivan, 195 B.R. 649, 652 (Bankr.W.D.Tex.1996); In re Shelbayah, 165 B.R. 332, 337 (Bankr.N.D.Ga.1994); Ridder v. Great Lakes Higher Educ. Corp. (In re Ridder), 171 B.R. 345, 347-48 (Bankr.W.D.Wis.1994); Jordan v. Colorado Student Loan Program (In re Jordan), 146 B.R. 31, 32-33 (D.Colo.1992). But see In re Wasson, 152 B.R. 639, 641-42 (Bankr.D.N.M.1993). .The plan provided for the payment of the Pardees' student loan debt as follows: e. Education Loan(s): The Debtor has two separate obligations for their student loans which are as follows: (1) ... (2) Great Lakes Higher Education, 2401 International Way, Madison WI 53704 in the amount of $26,235.00. This obligation was incurred by Robert McKnight Pardee and in default. Great Lakes Education shall be paid through the Plan and Great Lakes Higher Education shall receive the total amount of $26,235.00 for its claim and any remaining unpaid amounts, if any, including any claims for interest, shall be discharged by the Plan. Excerpts of Record at 39 (emphasis added). . We do not address any of the" }, { "docid": "16575445", "title": "", "text": "from treating the Debtors in the same manner, with respect to their nondis-chargeable student loan debts, as it does other debtors who have not declared bankruptcy. Section 502 provides, (b) Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that— (2) such claim is for unmatured interest .... 11 U.S.C.A. § 502(b)(2) (emphasis added). It is undisputed, based on § 502, that ECMC could file claims with the Debtors’ estates only for prepetition interest and principal and not for unmatured, postpetition interest. The purpose of this provision is to protect other creditors, as well as to avoid administrative inconvenience, by ensuring that it is “possible to calculate the amount of claims easily and ... that creditors at the bottom rungs of the priority ladder are not prejudiced by the delays inherent in liquidation and distribution of the estate.” In re Hanna, 872 F.2d 829, 880 (8th Cir.1989). Section 502 does not “freeze” the debt of the student loan debt- or; interest continues to accrue during the pendency of the bankruptcy proceedings and, as noted above, the debtor remains personally liable for the full amount of the student loan debt. See Cousins, 209 F.3d at 40. A. The lower courts in each case reasoned that although the Debtors’ postpetition interest remained nondischargeable and could be recovered from the debtors personally upon completion of the Chapter 13 plans, ECMC could not apply payments to postpetition interest from the bankruptcy estates because § 502 prohibits the application of bankruptcy estate funds to unmatured, postpetition interest. In other words, these courts concluded that because § 502 barred ECMC from claiming post-petition interest from the bankruptcy estates, it also barred ECMC from applying the estates’ payments to postpetition interest. The lower courts and the Debtors rely on Bruning v." }, { "docid": "22912217", "title": "", "text": "$515 per month for 60 months for a total of $30,900. The Plan also purported to pay Appellant’s student loan debt as follows: e. Education Loan(s): The Debtors have two separate obligations for their student loans which are as follows: (2) Great Lakes Higher Education, 2401 International Way, Madiseon [sic] WI 53704 in the amount of $26,235.00. This obligation was incurred by Robert McKnight Pardee and [is] in default. Great Lakes [Higher] Education shall receive the total amount of $26,235.00 for its claim and any remaining unpaid amounts, if any, including any claims for interest, shall he discharged by the plan. (second emphasis added). On June 8, 1993, the Plan was confirmed (the “Confirmation Order”). The Confirmation Order was entered on August 5, 1993. Appellant failed to object to its treatment under the Plan. On April 9, 1996, Appellees received their chapter 13 discharge after paying all obligations pursuant to the Plan. After Appellant received full payment of its principal and prepetition interest under the Plan, Appellant demanded and attempted to collect $6,095.92 in postpetition interest. Appellees filed a motion to reopen the bankruptcy case, which was granted, and filed the Motion requesting that the bankruptcy court enforce the discharge and permanently enjoin Appellant from collecting postpetition interest on the student loan debt. On January 6, 1997, the bankruptcy court granted the Motion by minute order and entered its Order to Enforce Discharge and Permanent Injunction (the “Injunction Order”) on January 29, 1997. The bankruptcy court held that: (1) Appellant was bound by the language of the Plan and its failure to request postpetition interest in the Claim or object to the Discharge Provision constituted a waiver of any claim for postpetition interest; (2) Appellant had no claim for postpetition interest because the principal and pre-petition interest on the nondischargeable student loan debt was paid in full under the Plan; and (3) Bankruptcy Code (the “Code”) § 502(b)(2) did not permit Appellant to assert a nondischargeable claim for postpetition interest on the student loan because the debt was paid in full through the Plan. Accordingly, the bankruptcy court ordered that" }, { "docid": "16575437", "title": "", "text": "in the amount of $12,204.42 for Jean Kielisch. The proofs of claim included only principal and pre-petition interest. On March, 30, 1992, the Kielisches filed an amended Chapter 13 plan, replacing the December 1991 plan. The amended plan, which was confirmed on June 12, 1992, provided that “the accepted unsecured claims of Great Lakes Higher Education, in the amounts of $12,095.35 and $10,629.00, will be paid in full through the Trustee.” (J.A. at 46 .) Pursuant to the amended plan, the trustee paid Great Lakes $10,887 .63 for Kurt Kielisch and $12,956.43 for Jean Kielisch, and on June 6, 1997, the bankruptcy court entered an order discharging the Kielisch-es. After the discharge, ECMC, the assign-ee of the Kielisches’ student loans, pursued collection efforts against them. ECMC asserted that, notwithstanding the payments made under the amended plan and the discharge order, its claims were never fully paid because postpetition interest continued to accrue during the pendency of the Chapter 13 proceedings. ECMC also argued that it was proper to apply plan payments first to accrued postpetition interest before principal and that, as a result, the Kielisches still owed a substantial amount on their loans. The Kielisches, in response to ECMC’s claims, filed a complaint in bankruptcy court to determine the dischargeability of their student loan debt and the proper application of plan payments to that debt. After a hearing, the bankruptcy court held that although ECMC was entitled to postpetition interest on the nondischargeable student loans, it was improper to apply any of the plan payments to post-petition interest. Accordingly, the bankruptcy court required ECMC to recalculate and reapply the payments received by Great Lakes from the estate to determine what amount of postpetition interest on the loans, if any, remained unpaid. The bankruptcy court left it to the parties to determine the extent to which ECMC’s claim has been satisfied. On January 31, 2000, ECMC filed a notice of appeal to the district court. The district court, after reviewing the briefs and the record and without oral argument, affirmed the bankruptcy court’s decision. B. The Lawrences On May 4, 1993," }, { "docid": "22912220", "title": "", "text": "Ltd. Partnership (In re Harrell), 73 F.3d 218, 219 (9th Cir.1996)). IV.DISCUSSION A Appellant Was Not Precluded From Collecting Postpetition Interest On The Claim Because The Claim Was Paid In Full Under The Plan. The bankruptcy court held that Appellant’s claim for postpetition interest on the Claim was discharged or extinguished by Appellees’ completion of the Plan, when the principal and prepetition interest was “paid in full.” We disagree. Student loan debts are nondisehargeable in bankruptcy unless either the payment first became due more than seven years before the date of filing the bankruptcy petition, or the debtor can prove that excepting the debt from discharge will impose an undue hardship. See 11 U.S.C. § 523(a)(8). This nondischargeability provision applies in chapter 13. Section 1328 states in pertinent part: (a) As soon as practicable after completion by the debtor of all payments under the plan, unless the court approves a written waiver of discharge executed by the debtor after the order for relief under this chapter, the court shall grant the debtor a discharge of all debts provided for by the plan or disallowed under section 502 of this title, except any debt — (2) of the kind specified in paragraph (5), (8), or (9) of section 523(a) of this-title; 11 U.S.C. § 1328(a)(2) (emphasis added). However, the Code is silent as to whether postpetition interest on a nondisehargeable student loan is nondisehargeable in bankruptcy. The seminal case on this issue is Bruning v. United States, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964). In Bruning, a ease decided under the Bankruptcy Act of 1898, the Supreme Court held that although postpetition interest on a nondis-chargeable tax debt could not be paid by the bankruptcy estate, it nevertheless survived bankruptcy and could be recovered personally from the debtor. Id. at 361, 84 S.Ct. at 908. The Court reasoned that “interest is an integral part of a continuing debt,” and becomes part of the debt itself. Id. at 360, 84 S.Ct. at 908. The Court distinguished between the disallowance of postpetition interest against the bankruptcy estate on a non-dischargeable" }, { "docid": "16575450", "title": "", "text": "though they remain personally liable for the postpetition interest. Brun-ing, however, only addressed whether Bruning could be personally liable for postpetition interest that was not paid out of the estate; it did not address the propriety of applying estate payments to post-petition interest. In Leeper, the Third Circuit concluded that Bruning applied to the Chapter 13 context and that postpetition interest did accrue on nondischargeable student loan debt during the pendency of Chapter 13 proceedings. Leeper, 49 F.3d at 104. Leeper, however, addressed only whether postpetiton interest could accrue on a non-dischargeable student loan after the filing of a Chapter 13 bankruptcy petition and not whether the creditor could apply estate payments to postpetition interest. Moreover, the Leeper court explicitly recognized that the creditor did not argue that plan payments made by the debtors could be applied beyond its bankruptcy claims, which only included outstanding principal and prepetition interest. Id. at 100 (noting that in its answer, the creditor “conceded that all plan payments made by the debtors should be applied only to their bankruptcy claims, which include the outstanding principal balances of the loans and all pre-petition interest”). Thus, Leeper did not address the issue before us, which is whether § 502 prohibits the application of estate payments to postpetition interest on nondischargeable student loan debt that was not included in the bankruptcy claims, but for which the Debtors remain personally liable. B. Section 502 bars creditors from making claims from the bankruptcy estate for un-matured interest; it is undisputed, therefore, that ECMC could not have included the Debtors’ postpetition interest in its proofs of claim to their bankruptcy estates. Section 101(5) of the bankruptcy code defines a “claim” as follows: (5) “claim” means— (A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed," }, { "docid": "22912263", "title": "", "text": "1325(b)(1). There is at least one circumstance in which unmatured interest is plainly permitted to be paid under a chapter 13 plan. When the last payment on a secured or unsecured obligation is due after the date of the final payment under the chapter 13 plan, the plan may provide for curing any default in that obligation within a reasonable time and maintaining payments while the case is pending. 11 U.S.C. § 1322(b)(5). If the obligation in-eludes interest, then the ability to curé a default and maintain payments necessarily permits payment of interest that was unma-tured as of the time of filing. 2 The real reason that creditors are not ordinarily paid unmatured interest is that the discharge eliminates the interest obligation. The disallowance of the claim, when it prevents payment, merely adds insult to the injury. Each chapter has its own discharge provisions, the terms of which must be consulted to determine whether the specific debt is discharged. 11 U.S.C. §§ 727(b), 1141(d), 1228(a)-(c), & 1328(a)-(c). The debtors in this instance received the chapter 13 “superdischarge” that is available only if all the plan payments are actually made. They were discharged from: all debts provided for by the plan or disallowed under section 502 of this title, except any debt — (1) provided for under section 1322(b)(5) of this- title; (2) of the kind specified in paragraph (5), (8), or (9) of section 528(a) of this title; or (3) for restitution, or a criminal fine, included in a sentence on the debtor’s conviction- of a crime. 11 U.S.C. § 1328(a) (emphasis supplied). This discharge under § 1328(a) does not discharge postpetition interest on the student loan debt because, although disallowed under § 502 as unmatured interest, it is part of an obligation of the'Mnd specified in § 523(a)(8) that is excepted from discharge.” Hence, postpetition interest on a nondis-chargeable student loan debt in chapter 13 is similarly nondischargeable. D The trial court’s conclusion that the claim was “paid in full” under the plan because Great Lakes received all of the principal and prepetition interest that was owed begs the" }, { "docid": "23491880", "title": "", "text": "contingent, matured, unma-tured, disputed, undisputed, secured, or unsecured; (12) “debt” means liability on a claim. Title 11 U.S.C. § 101. In addition the Code goes further by setting forth allowance of claims or interests in Title 11 U.S.C. § 502, a portion of which follows: (b) Except as provided ..., if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that- (5) such claim is for a debt that is unmatured on the date of the filing of the petition and that is excepted from discharge under section 523(a)(5) of this title. Title 11 U.S.C. § 502(b)(5). The court in In re Wagner, 200 B.R. 160 (Bankr.N.D.Ohio 1996), addressed the issue of whether debtors must pay postpetition interest on student loans even though the Ohio Student Loan Commission was paid 100 per cent of its allowed claims without interest under the terms of the debtors’ Chapter 13 plan. Debtors received a discharge pursuant to 11 U.S.C. § 1328. The court held that postpetition interest on nondischargeable student loan debt was nondischargeable and could be collected from debtors personally, even after debtors fully paid guarantor’s allowed claims and were granted discharge under Chapter 13. See In re Shelbayah, 165 B.R. 332, 335 (Bankr.N.D.Ga.1994) (The disallowance of postpetition interest had no effect on the dischargeability of a claim for interest liability). In the case at bar Appellee Bell owes appellant ECMC post-judgment interest. CONCLUSION Appellee Bell’s student loan was not discharged. By law her student loan could not have been discharged by the bankruptcy court. Based on the record and the law as set forth above, the court holds the following: 1) Appellee Bell has failed to substantiate her position. Neither claim objection nor the bankruptcy court’s order reducing the claim discharge the student loan debt. 2) Collateral estoppel and res judicata do not preclude appellant ECMC from collecting the remaining" }, { "docid": "22912216", "title": "", "text": "OPINION JOHN E. RYAN, Bankruptcy Judge. Robert and Darlene Pardee (“Appellees”) filed a chapter 13 plan (the “Plan”) that purported to discharge postpetition interest on a nondischargeable student loan debt (the “Discharge Provision”) owed to Great Lakes Higher Education Corp. (“Appellant”). Appellant failed to object to the Plan, and the Plan was subsequently confirmed. After Ap-pellees received their chapter 13 discharge, Appellant attempted to collect interest that had accrued on the unpaid principal after the bankruptcy petition .was filed. Appellees filed a motion (the “Motion”) to enforce the discharge and to enjoin permanently Appellant from attempting to collect postpetition interest on the student loan debt. The bankruptcy court granted the Motion and enjoined Appellant from further collection activity. We AFFIRM. I. FACTS The facts are undisputed. On August 14, 1992, Appellees filed their chapter 13 bankruptcy petition. On September 9, 1992, Appellant filed its proof of claim (the “Claim”) in the amount of $26,015.22. The Claim did not seek either prepetition or postpetition interest. The Plan proposed to pay the chapter 13 trustee (the “Trustee”) $515 per month for 60 months for a total of $30,900. The Plan also purported to pay Appellant’s student loan debt as follows: e. Education Loan(s): The Debtors have two separate obligations for their student loans which are as follows: (2) Great Lakes Higher Education, 2401 International Way, Madiseon [sic] WI 53704 in the amount of $26,235.00. This obligation was incurred by Robert McKnight Pardee and [is] in default. Great Lakes [Higher] Education shall receive the total amount of $26,235.00 for its claim and any remaining unpaid amounts, if any, including any claims for interest, shall he discharged by the plan. (second emphasis added). On June 8, 1993, the Plan was confirmed (the “Confirmation Order”). The Confirmation Order was entered on August 5, 1993. Appellant failed to object to its treatment under the Plan. On April 9, 1996, Appellees received their chapter 13 discharge after paying all obligations pursuant to the Plan. After Appellant received full payment of its principal and prepetition interest under the Plan, Appellant demanded and attempted to collect $6,095.92 in postpetition" }, { "docid": "22912225", "title": "", "text": "B.R. 31, 32-33 (D.Colo.1992). Because we find no reason to limit the Bmning principle to nondischargeable tax debts, we conclude that postpetition interest on a nondischargeable student loan debt is nondischargeable under the Code. Finally, because chapter 13 specifically incorporates the non-dischargeability provisions of § 523(a)(8), the Bmning principle also applies in chapter 13. We turn next to whether postpetition interest on the Claim was discharged or extinguished because the Plan paid the Claim in full. The bankruptcy court, citing In re Wasson, 152 B.R. 639 (Bankr.D.N.M.1993), held that full payment of the Claim under the Plan discharged any claim for postpetition interest. We disagree with the Wasson holding and conclude that the bankruptcy court’s reliance on Wasson was erroneous. In Wasson, the chapter 13 plan provided for full payment of principal and prepetition interest on a nondischargeable student loan debt. The student loan creditor objected to the debtor’s chapter 13 plan because it did not provide for postpetition interest. The court overruled the objection on the basis that because postpetition interest is disallowed under § 502(b)(2), postpetition interest on student loans may be discharged when the allowed claim is paid in full. However, the Wasson court confused the concept of claim disallowance ' under § 502(b)(2), in which a claim for unmatured interest cannot be paid from the bankruptcy estate, with the concept of nondischargeability under §§ 523(a)(8) and 1328(a)(2). Section 502(b)(2) clearly disallows recovery of unmatured interest from the bankruptcy estate. Therefore, this rule bars recovery from the bankruptcy estate of postpetition interest on a nondischargeable debt. See H.R.Rep. No. 95-595, 95th Cong., 2nd Sess. 62 (1978), reprinted in 1978 U.S.C.C.A.N. 5848, 6308-09. However, § 502(b)(2) does not proscribe recovery from the debtor personally for non-dischargeable debts that are not paid from the bankruptcy estate. Because postpetition interest on a nondischargeable debt cannot be paid from the bankruptcy estate, the holder of the unpaid claim may seek to recover on that claim once the discharge injunction has been lifted (i.e., once plan payments have been completed in a chapter 13 case). While the discharge provision of § 1328" }, { "docid": "22912224", "title": "", "text": "1468 (10th Cir. 1992); Burns v. United States (In re Burns), 887 F.2d 1541, 1543 (11th Cir.1989); Hanna, 872 F.2d 829, 831 (8th Cir.1989); and Bradley v. United States, 936 F.2d 707, 709-10 n. 3 (2d Cir.1991) (stating in dictum that the weight of authority supports the view that a debtor is personally liable for postpetition interest on unpaid taxes). Accordingly, we join the unanimous circuit court authority that has addressed this issue and conclude that Bmning retains its vitality under the Bankruptcy Code. Furthermore, the overwhelming majority of bankruptcy courts have extended the Supreme Court’s Bmning principle to apply to postpetition interest on nondischargeable student loans. See Wagner v. Ohio Student Loan Comm’n (In re Wagner), 200 B.R. 160, 163 (Bankr.N.D.Ohio 1996); In re Sullivan, 195 B.R. 649, 652 (Bankr.W.D.Tex.1996); Branch v. Unipac/Nebhelp (In re Branch), 175 B.R. 732 (Bankr.D.Neb.1994); In re Shelbayah, 165 B.R. 332, 337 (Bankr.N.D.Ga.1994); Ridder v. Great Lakes Higher Educ. Corp. (In re Ridder), 171 B.R. 345, 347-48 (Bankr.W.D.Wis.1994); and Jordan v. Colorado Student Loan Program (In re Jordan), 146 B.R. 31, 32-33 (D.Colo.1992). Because we find no reason to limit the Bmning principle to nondischargeable tax debts, we conclude that postpetition interest on a nondischargeable student loan debt is nondischargeable under the Code. Finally, because chapter 13 specifically incorporates the non-dischargeability provisions of § 523(a)(8), the Bmning principle also applies in chapter 13. We turn next to whether postpetition interest on the Claim was discharged or extinguished because the Plan paid the Claim in full. The bankruptcy court, citing In re Wasson, 152 B.R. 639 (Bankr.D.N.M.1993), held that full payment of the Claim under the Plan discharged any claim for postpetition interest. We disagree with the Wasson holding and conclude that the bankruptcy court’s reliance on Wasson was erroneous. In Wasson, the chapter 13 plan provided for full payment of principal and prepetition interest on a nondischargeable student loan debt. The student loan creditor objected to the debtor’s chapter 13 plan because it did not provide for postpetition interest. The court overruled the objection on the basis that because postpetition interest is disallowed under" }, { "docid": "22912223", "title": "", "text": "survived the enactment. See United States v. Ron Pair Enter., Inc., 489 U.S. 235, 244-45, 109 S.Ct. 1026, 1032, 103 L.Ed.2d 290 (1989); Rodriguez v. United States, 480 U.S. 522, 525, 107 S.Ct. 1391, 1393, 94 L.Ed.2d 533 (1987) (per curiam). As the Eighth Circuit aptly stated: Taken together, sections 502 and 523 simply demonstrate Congress’ intent to codify the general principle that applied under Bruning. Postpetition interest is disallowed against the bankruptcy estate under section 502. Priority tax claims remain nondisehargeable for individual debtors _Thus, postpetition interest is non-dischargeable and the [debtors] remain lia ble. for that interest subsequent to the bankruptcy proceedings. Hanna v. United States (In re Hanna), 872 F.2d 829, 831 (8th Cir.1989). Additionally, although the Ninth Circuit has not addressed whether the Bruning rule continues to apply under the Code, five circuit courts have held that Bruning remains good law under the Code. See Leeper v. Pennsylvania Higher Educ. Assistance Agency (In re Leeper), 49 F.3d 98, 101-02 (3d Cir.1995); Fullmer v. United States (In re Fullmer), 962 F.2d 1463, 1468 (10th Cir. 1992); Burns v. United States (In re Burns), 887 F.2d 1541, 1543 (11th Cir.1989); Hanna, 872 F.2d 829, 831 (8th Cir.1989); and Bradley v. United States, 936 F.2d 707, 709-10 n. 3 (2d Cir.1991) (stating in dictum that the weight of authority supports the view that a debtor is personally liable for postpetition interest on unpaid taxes). Accordingly, we join the unanimous circuit court authority that has addressed this issue and conclude that Bmning retains its vitality under the Bankruptcy Code. Furthermore, the overwhelming majority of bankruptcy courts have extended the Supreme Court’s Bmning principle to apply to postpetition interest on nondischargeable student loans. See Wagner v. Ohio Student Loan Comm’n (In re Wagner), 200 B.R. 160, 163 (Bankr.N.D.Ohio 1996); In re Sullivan, 195 B.R. 649, 652 (Bankr.W.D.Tex.1996); Branch v. Unipac/Nebhelp (In re Branch), 175 B.R. 732 (Bankr.D.Neb.1994); In re Shelbayah, 165 B.R. 332, 337 (Bankr.N.D.Ga.1994); Ridder v. Great Lakes Higher Educ. Corp. (In re Ridder), 171 B.R. 345, 347-48 (Bankr.W.D.Wis.1994); and Jordan v. Colorado Student Loan Program (In re Jordan), 146" }, { "docid": "22912239", "title": "", "text": "374, 377 (9th Cir. BAP 1993) (“It is now well-settled that a bankruptcy court’s confirmation order is a binding, final order, accorded full res judicata effect and precludes the raising of issues which could or should have been raised during the pendency of the case, such as typical lender liability causes of action.”) (citing Eubanks v. F.D.I.C., 977 F.2d 166, 171 (5th Cir.1992)), aff'd, 59 F.3d 175 (9th Cir.1995); In re Szostek, 886 F.2d 1405, 1406 (3d Cir.1989) (“[Although prior to confirmation the bankruptcy court and trustee do have a responsibility to verify that a Chapter 13 plan complies with the Bankruptcy Code provisions, after the plan is confirmed the policy favoring the finality of confirmation is stronger than the bankruptcy court’s and the trustee’s obligations to verify a plan’s compliance with the Code.”). Thus, Appellant was bound by the terms of the Plan. We recognize that this holding is contrary to the conclusion reached in Ridder, with which we disagree. In Ridder, Great Lakes (the same creditor here) failed to object to a plan provision that denied interest on its student loan claim. After the debtor received her discharge, Great Lakes demanded that the debtor pay all postpetition interest that accrued. The' bankruptcy court held that because the student loan debt was non-dischargeable, Great Lakes could collect postpetition interest post-discharge from the debtor. The court stated that since Great Lakes was not entitled to postpetition interest under the Code, it had no reason to object to the plan, and thus, “[a]ny attempt by Great Lakes to object to confirmation would have been frivolous.” Ridder, 171 B.R. at 348. We reject the analysis in Ridder. It would not have been frivolous for Great Lakes to object to confirmation in Ridder or here. While Appellant is not entitled to collect unmatured interest from the bankruptcy estate pursuant to § 502(b)(2), the Discharge Provision precludes Appellant from collecting postpetition interest from Appellees by discharging Appellees’ liability on any postpetition interest on the Claim. The Plan clearly altered Appellant’s rights. The Ridder court failed to address the binding affect-of a confirmed chapter 13" }, { "docid": "13520868", "title": "", "text": "of unmatured interest with the non-accrual of interest.” Shelbayah, 165 B.R. at 337. The court held that while section 502(b)(2) bars claims for unmatured interest against the bankruptcy estate, it should not preclude the accrual of interest on nondischargeable claims against the debt- or. Id. Even more recently, the bankruptcy court in Branch held that post-petition interest may accrue on a nondischargeable student loan and is nondischargeable, therefore remaining an obligation of the debtor after the bankruptcy case is completed. Matter of Branch, 175 B.R. at 734-35. Branch rejects the Wasson analysis as “contrary to the logic of [In re Hanna], the authority in [the Eighth] circuit.” Id. at 734. In re Hanna followed Bruning and held that a debtor remains personally liable for post-petition interest on a nondischargeable tax debt after bankruptcy proceedings are completed. See 872 F.2d at 831. We agree that the Wasson decision failed to distinguish properly between a claim for unmatured interest and the accrual of post-petition interest on a nondis-chargeable debt, and that the discharge of post-petition interest on nondischargeable debts was clearly inconsistent with the mandate of Bruning. With the exception of Wasson, every court that has addressed the issue has determined that interest may accrue on nondischargeable student loans during the pendency of a Chapter 13 bankruptcy plan. See Jordan v. Colorado Student Loan Program (In re Jordan), 146 B.R. 31, 32-33 (D.Colo.1992) (affirming denial of debtor’s motion to confirm a Chapter 13 plan based on creditor’s objection that the plan improperly provided that interest on the debtor’s non-disehargeable student loans would be tolled while the bankruptcy was pending); Ridder v. Great Lakes Higher Educ. Corp. (In re Ridder), 171 B.R. 345, 346-47 (Bankr.W.D.Wis.1994) (post-petition interest on a nondischargeable student loan may be collected after bankruptcy concluded); see also In re Crable, 174 B.R. 62, 63 (Bankr.W.D.Ky.1994) (permitting accrual of post-petition interest on nondischargeable debt for child support during pendency of Chapter 13 proceeding and noting that cases involving student loans are analogous). It remains to be considered whether there is any validity to the debtors’ argument that the bankruptcy court improperly" }, { "docid": "22912228", "title": "", "text": "“allowed claim” in § 1328(a)(2), did not intend to limit the dis-chargeability provisions to “allowed claims.” Certainly, Congress knew how to limit liability for nondischargeable debts to allowed claims if this was its intent. However, the dischargeability exceptions extend to certain “debts,” which are defined as rights to payment, “whether matured or unmatured.” Accordingly, § 502(b)(2) only precludes the payment of postpetition interest from the bankruptcy estate. Once the discharge injunction is lifted at the completion of chapter 13 plan payments, the student loan creditor may collect the unpaid interest on its nondis-chargeable debt from the debtor personally. Similarly, we disagree with the bankruptcy court that one hundred percent payment ■ of principal and prepetition interest pursuant to the Plan extinguished or discharged postpetition interest on the Claim. The Claim was not “paid in full” because Appellant did not receive postpetition interest. Only the “allowed claim” was fully paid. Consequently, Appellant was not precluded from recovering postpetition interest on the Claim just because Appellees completed their Plan payments. Although we disagree with the bankruptcy court’s reasoning, as discussed below, we affirm on other grounds. B. The Plan Was Res Judicata Regarding The Discharge Provision. Appellant argues that the bankruptcy court erroneously concluded that Appellant waived any elaim for postpetition interest and is bound by the Discharge Provision in the Plan. We disagree. 1. Appellant’s Failure To Object To The Discharge Provision Constituted A Waiver Of Its Right To Collect Postpe- ■ tition Interest On The Claim. Generally, a creditor is not required to object to a plan provision that does not purport to pay postpetition interest because any attempt to collect postpetition interest through the bankruptcy estate is precluded under § 502(b)(2). See Ridder, 171 B.R. at 347. However, when the chapter 13 plan contains a provision that purports to discharge a nondischargeable debt in violation of §§ 523(a) and 1328(a), the student loan creditor with notice of this plan provision must object to the plan or appeal the confirmation order. The failure to do so constitutes a waiver of its right to collaterally attack the confirmed plan postconfirmation on" }, { "docid": "22912227", "title": "", "text": "generally discharges all debts provided for by the plan or disallowed under § 502, student loan debts are specifically excepted from discharge. See 11 U.S.C. § 1328(a)(2). Thus, applying the Bruning principle, postpetition interest on nondischargeable student loan debts are also excepted from discharge under § 1328(a)(2). Additionally, Wasson overlooked the distinction between “claims” and “allowed claims.” Under §§ 523(a)(8) and 1328(a)(2), student loan “debts” are excepted from discharge. Debt is defined as “liability on a claim,” 11 U.S.C. § 101(12), and “claim” is defined as a “right to payment, whether or not such right is ... matured [or] unma-tured.” Id. § 101(5)(A) (emphasis added). Although the Code precludes postpetition interest on an “allowed claim,” §§ 523(a)(8) and 1328(a)(2) do not limit their exceptions from discharge to an allowed claim. We note that Congress used the term “allowed claims” in certain parts of the Code. See, e.g., §§ 726(a) and 1129(b)(2). These sections support the general rule that only “allowed claims” will be paid through the bankruptcy estate.' However, Congress, by not using the term “allowed claim” in § 1328(a)(2), did not intend to limit the dis-chargeability provisions to “allowed claims.” Certainly, Congress knew how to limit liability for nondischargeable debts to allowed claims if this was its intent. However, the dischargeability exceptions extend to certain “debts,” which are defined as rights to payment, “whether matured or unmatured.” Accordingly, § 502(b)(2) only precludes the payment of postpetition interest from the bankruptcy estate. Once the discharge injunction is lifted at the completion of chapter 13 plan payments, the student loan creditor may collect the unpaid interest on its nondis-chargeable debt from the debtor personally. Similarly, we disagree with the bankruptcy court that one hundred percent payment ■ of principal and prepetition interest pursuant to the Plan extinguished or discharged postpetition interest on the Claim. The Claim was not “paid in full” because Appellant did not receive postpetition interest. Only the “allowed claim” was fully paid. Consequently, Appellant was not precluded from recovering postpetition interest on the Claim just because Appellees completed their Plan payments. Although we disagree with the bankruptcy court’s" }, { "docid": "4798725", "title": "", "text": "such claims and whether interest accruing postpetition may be nondischargeable. The policy of fair treatment underlying section 502(b)(2) is not offended by permitting postpetition interest on a nondis-chargeable claim to be nondischargeable, because the postpetition interest is disallowed and therefore the claim for that interest receives no share of the estate. Equating dis-allowance of an unmatured interest claim with non-accrual of interest has no basis in the statute and serves no bankruptcy policy. The portion of GHEAC’s claim for postpetition interest is not allowable, notwithstanding the fact that it is also nondis-chargeable, because section 502(b)(2) plainly states that a claim for unmatured interest is not allowable. The effect of disallowance is to insure that creditors other than GHEAC receive their fair share of the estate. Interest will continue to accrue on the unpaid principal balance of the debt, but the Debtor may not pay the accruing postpetition interest under the plan and need not voluntarily pay it outside the plan during the pendency of the Chapter 13 case. Even if the Debtor pays the full amount of GHEAC’s claim as of the filing of the petition pursuant to the plan, the Debtor will remain liable at the conclusion of the plan for postpetition interest that accrues on the decreasing balance of the principal portion of the debt paid under the plan. The automatic stay imposed by section 362 bars GHEAC from attempting to collect the postpetition interest from property of the estate until the Debtor receives a discharge or the case is dismissed, whichever occurs first. The claim filed by GHEAC was filed as a priority claim. Nothing in its proof of claim reflects that it is entitled to any priority under section 507 of the Bankruptcy Code. The burden was on GHEAC to prove its claim in the face of the Debtor’s objection; it did not do so beyond the Debtor’s admission of the prepetition amount of the claim. Accordingly, it is herewith ORDERED that the objection to GHEAC’s claim is granted in part and denied in part; and it is FURTHER ORDERED that the GHEAC’s claim is disallowed" }, { "docid": "22912240", "title": "", "text": "provision that denied interest on its student loan claim. After the debtor received her discharge, Great Lakes demanded that the debtor pay all postpetition interest that accrued. The' bankruptcy court held that because the student loan debt was non-dischargeable, Great Lakes could collect postpetition interest post-discharge from the debtor. The court stated that since Great Lakes was not entitled to postpetition interest under the Code, it had no reason to object to the plan, and thus, “[a]ny attempt by Great Lakes to object to confirmation would have been frivolous.” Ridder, 171 B.R. at 348. We reject the analysis in Ridder. It would not have been frivolous for Great Lakes to object to confirmation in Ridder or here. While Appellant is not entitled to collect unmatured interest from the bankruptcy estate pursuant to § 502(b)(2), the Discharge Provision precludes Appellant from collecting postpetition interest from Appellees by discharging Appellees’ liability on any postpetition interest on the Claim. The Plan clearly altered Appellant’s rights. The Ridder court failed to address the binding affect-of a confirmed chapter 13 plan when the creditor fails to timely object to the plan. Because a confirmed plan binds the creditors and debt- or under § 1327(a), Appellant cannot, after the order of confirmation is final and after Appellees have fully performed on the Plan, collaterally attack the confirmation order by seeking to collect interest on the Claim in direct violation of the terms of the Plan. We are also mindful that the Seventh Circuit has taken a contrary position with which we also disagree. In In re Escobedo, 28 F.3d 34 (7th Cir.1994), a chapter 13 plan that did not include allowed administrative and tax priority claims as required under § 1322(a)(2) was confirmed without objection. Nearly five years after plan confirmation and two years after the debtor’s final payment, the trustee petitioned the court to either modify the plan’s payment schedule to include the already allowed administrative and tax priority claims, or dismiss the plan altogether. Id. at 34-35. The debtor did not modify the plan and the bankruptcy court dismissed the entire plan. Id. at" } ]

[ { "docid": "12051326", "title": "", "text": "way of the diminution in value of [share value] is one that must be brought derivatively. Only when the injury alleged by the individual is separate and distinct from any injury to the [partnership] may an individual action be maintained. Only when this requirement of “special injury” is met may an individual action go forward. Buckley v. Control Data Corp., No. 3-88-698, slip op. at 9 (citations omitted). After analyzing the allegations of each count of the complaint, the magistrate concluded that: “plaintiffs’ claims here do not allege any individualized harm that is separate and distinct from the harm done to the limited partnership,” id. at 13-14, and therefore, plaintiffs’ claims are all derivative, id. at 13-20. The district court gave detailed consideration to the parties’ objections to this report, conducted a de novo review, and adopted the magistrate’s report and recommendation in its entirety. The issue has been abundantly briefed by the parties. We are not persuaded that the district court erred in adopting the magistrate’s report and recommendation that the'claims asserted were derivative, and not direct claims. This compels us to conclude that the partnership is an indispensable party in this litigation and therefore, cannot be dismissed for the sole purpose of curing a jurisdictional defect. For the foregoing reasons, we vacate the district court’s judgment and dismiss this appeal for lack of federal jurisdiction. . The Honorable Donald D. Alsop, Chief Judge, United States District Court for the District of Minnesota. . Control Data Research, Inc., is a wholly owned subsidiary of Control Data Corporation, and is also the only general partner of Control Data Research Limited Partnership. . Plaintiffs filed their original complaint pursuant to Rule 23 of the Federal Rules of Civil Procedure as representatives of a class consisting of themselves and all other persons who during 1982 purchased limited partnership interests in the Partnership and who sustained damages. The district court dismissed the claims before reaching the question of class certification. . Rule 23.1 states: \"The complaint shall also allege with particularity the efforts, if any, made by the plaintiff to obtain the action" } ]

[ { "docid": "14387703", "title": "", "text": "shareholder’s misappropriation of a chapter 7 trustee’s funds constituted a breach of fiduciary duty). Because issues of fact remain as to whether it was a breach of Mr. Hassam’s fiduciary duty as partner to, inter alia, deposit the plaintiffs’ $340,000 into personal accounts rather than into a Partnership account, the plaintiffs’ motion for summary judgment will be denied as to Count III. In addition, misappropriation is not barred by the “gist of the action” doctrine because, for reasons explained infra, the fiduciary duties flowing between Mr. Rahemtulla and Mr. Hassam, as partners, are separate and distinct from the contractual duties contained within their Partnership Agreement. If the defendants’ motion to dismiss were the only pending motion before the court, the motion would be denied for reasons that the “gist of the action” doctrine does not apply to the tort of misappropriation of monies in this case. However, because the court is denying summary judgment and subsuming misappropriation under a claim for breach of fiduciary duties, this effectively nullifies misappropriation as a cause of action under Pennsylvania law. For that separate reason, the defendants’ motion to dismiss will be granted as to Count III. Conversion The plaintiffs’ conversion claim is similar to their claim for misappropriation; the defendants are alleged to have improperly retained $340,000 belonging to the plaintiffs due to their failure to comply with the terms of the Partnership Agreement. Specifically, the plaintiffs cite to section 5 of the Partnership Agreement and argue that it is undisputed that Mr. Hassam received their $340,000, which was undis-putably required to be deposited into the Partnership account, but was in fact retained by Mr. Hassam for his own use. (Doc. No. 71). The defendants argue in opposition that the ambiguity of the Partnership Agreement, specifically sections 5(B)(C), creates genuine issues of material fact warranting a denial of summary judgment. (Doc. No. 86). The defendants also maintain that the claim for conversion fails as a matter of law because Mr. Rahemtulla voluntarily paid the subject funds to Mr. Hassam for an interest in a partnership and never had an immediate right to possession" }, { "docid": "13615077", "title": "", "text": "conversion theory to recover the investment he made in the Southwest Partnership. Mr. Kleban concedes that this principle bars his suit to recover Southwest Partnership funds, but he advances two arguments why his claim should stand anyway. First, Mr. Kleban argues that, in addition to the Southwest Partnership investment, he lent money to CDDT as a shareholder. As with his partnership investment, however, Mr. Kleban has no immediate right to possess money he lent to CDDT. He is a creditor of CDDT who must follow proper bankruptcy procedures to obtain the debt CDDT owes to him. Moreover, as a shareholder of CDDT seeking to recover money misappropriated from CDDT, Mr. Kleban’s proper remedy is a shareholder derivative action. See, e.g., Borgsmiller v. Burroughs, 187 Ill.App.3d 1, 134 Ill.Dec. 774, 779, 542 N.E.2d 1281, 1286 (5th Dist.1989) (“[A] cause of action for misappropriation of corporate assets belongs to the corporation rather than to individual stockholders, and must be brought in a derivative action.”). He may not attempt simply to obtain funds belonging to CDDT for himself. Finally, because Mr. Kleban lent the money to CDDT, he cannot show that the money “at all times belonged to [him].” Mr. Kleban also argues that “it is entirely unclear as to whether [sic] any or all of the Plaintiffs monies were ever applied to the Southwest or CDDT accounts.” Mr. Kleban’s theory seems to be that if someone had wrongfully cashed his check and never given the money to the Southwest Partnership or to CDDT, then he would have a claim for conversion against that person. However, Mr. Kleban does not allege that the defendants stole his cheek, rather than depositing it into CDDT’s account. He alleges that the moving defendants stole money from the Southwest Partnership and CDDT. Because Mr. Kleban cannot show an immediate right to possess those funds, his claim for conversion will be dismissed against the moving defendants. Conclusion For the reasons stated above, the complaint against S.Y.S., IDDT, Mr. Sun, Mr. Young, Midwest Properties, Willowbrook, IPC, RDC, Greenscape, and Burling Bank is dismissed. Counts IV, V, and VI are" }, { "docid": "6110400", "title": "", "text": "project’s problems in a letter to plaintiffs, but he did not inform them of the project’s economic infeasibility until July 1979. In December 1980, sixteen of the seventeen limited partners instituted this action, seeking recovery of their total principal invested in GCA, plus interest, punitive damages, costs and attorneys fees. Plaintiffs’ complaint alleged that GCA’s general partners omitted or misrepresented material facts' in promoting the partnership, in violation of: sections 12(2) and 17(a) of the Securities Act of 1933 (Count I); section 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934 (Count II); sections 36-472 and 36-498(a) of the Connecticut Securities Act (Count III); and the Connecticut Unfair Trade Practices Act (Count IV). In addition, plaintiffs claimed that defendants: were negligent in omitting or misrepresenting material facts (Count V); had engaged in fraudulent misrepresentation (Count VI); and had breached their fiduciary obligations to plaintiffs (Count VII). Plaintiffs also brought a derivative suit against LCG, claiming that LCG entered into the sublease with GCA solely to obtain the minimum annual royalty from GCA despite knowledge of the project’s economic infeasibility (Count VIII). Defendants filed a third-party complaint against Gates, alleging that Gates should have foreseen the economic infeasibility of mining and selling the coal. Defendants claimed that Gates’ failure constituted tor-tious conduct and that Gates should indemnify defendants for damages awarded to plaintiffs. After a bench trial, Judge Dorsey found that plaintiffs had not shown sufficient proof of defendants’ “state of knowledge and ... intent,” Capri v. Murphy, No. B-80-571, slip op. at 32 (D.Conn. Dec. 10, 1987), to sustain their claims under Counts I-IV and Count VI. The court also held that defendants had not breached any fiduciary duties to plaintiffs, finding that while Murphy had interests in both LCG and GCA, the LCG-GCA sublease benefited plaintiffs by maximizing tax payments to plaintiffs as limited partners. Judge Dorsey also dismissed the derivative action against LCG, finding that the royalty payment to LCG was not excessive and that LCG had in fact used the royalty to pay the venture’s start-up expenses. However, the court held that defendants were negligent" }, { "docid": "15033445", "title": "", "text": "claims against co-partner until plaintiff has pursued action for an accounting); see also, Herrick v. Guild, 257 A.D. 341, 342, 13 N.Y.S.2d 115, 117 (1st Dep’t 1939) (stating that “suits between partners should be brought in equity, particularly for an accounting, and that an action at law may not be maintained until after an accounting and a balance struck”); Blattberg v. Weiss, 61 Misc.2d 564, 566, 306 N.Y.S.2d 88, 91 (N.Y.App.Div.1969) (noting that capacity of limited partners to initiate class actions and derivative suits against general partners does not disturb settled rule regarding individual, non-representative claims). Accordingly, the court addresses the merits of plaintiffs motion for summary judgement granting an accounting infra at 381-85. b. Representative Direct Claims vs. Derivative Claims With respect to the allegations of breach of fiduciary duty, conversion, and negligence, plaintiff himself has characterized his claims as- derivative in nature. Plaintiffs Memo, at 3, 37. Although it should be noted that in determining whether a claim is derivative or direct, the court must look to the nature of the wrongs alleged in the body of plaintiffs complaint, and is not limited by plaintiffs characterization or stated intention See Litman v. Prudential-Bache Properties, Inc., 611 A.2d 12, 15 (Del.Ch.1992), an analysis of plaintiffs complaint confirms this classification of the remaining state law claims. In both the corporate and partnership context, the determination of whether a suit is derivative or direct turns on the nature of the injury alleged and the entity which sustains the harm. “The distinction between derivative and individual actions rests upon the party being directly injured by the alleged wrongdoing.” Kramer v. Western Pac. Indus., Inc., 546 A.2d 348, 351 (Del.Supr.1988). In a derivative suit, a shareholder sues on behalf of the corporation for harm done to the corporation. Kramer, 546 A.2d at 351. On the other hand, a shareholder may bring a direct action for injuries done to him in his individual capacity if he has “an injury which is separate and distinct from that suffered by other shareholders, or a wrong involving a contractual right of a shareholder, such as the right" }, { "docid": "17300705", "title": "", "text": "alleges the following eight counts: Count I: Claim for appointment of a custodian, removal of directors, and/or appointment of a receiver pendente lite; Count II: Derivative claim on behalf of Circle of Friends for breach of fiduciary duty, unjust enrichment, theft, conversion, and misappropriation relating to payments by Circle of Friends to the Vendor Defendants against the Vaisbergs, the Mándales, the Za-verukhas, and the Vendor Defendants; Count III: Derivative claim on behalf of Circle of Friends for breach of fiduciary duty and unfair competition relating to the diversion of corporate opportunity against the Vaisbergs, the Mándales, the Za-verukhas, and Grace Adult Day Healthcare, Inc.; Count TV: Derivative claim on behalf of Circle of Friends for civil conspiracy against the Vaisbergs, the Mándales, the Zaverukhas, Slo-bodskoi, and the Vendor Defendants; Count V: Individual claim on behalf of Felix Nedler, Frida Vaysman, and Inna Proshak for breach of contract against Victoria Vais-berg and Joseph Mandale; Count VI: Individual claim on behalf of Felix Nedler, Frida Vaysman, and Inna Proshak to recover damages due, breaches of fiduciary duty, and oppressive conduct of the Vaisbergs, Mándales, and Zaverukhas; Count VII: Individual claim on behalf of Steven Proshak to recover damages due to breaches of fiduciary duty and oppressive conduct of Alan Vaisberg; Count VIII: Claim brought individually and derivatively for appointment of a custodian, appointment of a receiver pendente lite, or appointment of a liquidating receiver. All defendants, represented by the same counsel, jointly filed the instant Motion to Dismiss. III. FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) Defendants filed their Motion to Dismiss based on Federal Rule of Civil Procedure 12(b)(6), “failure to state a claim upon which relief can be granted.” Such a motion tests the legal sufficiency of a complaint. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In considering a motion to dismiss under Rule 12(b)(6), a court must take all well-pleaded facts in the complaint as true and view them in the light most favorable to plaintiffs. See Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). Claims in" }, { "docid": "14387664", "title": "", "text": "misappropriated and commingled with the other defendants for other purposes. On March 31, 2004, the plaintiffs commenced this action in the United States District Court for the District of New Jersey, claiming, inter alia, fraud, misappropriation, conversion, breach of fiduciary duties, and unjust enrichment, and seeking an invalidation of the partnership documents, a disgorgement and return of the monies which they invested in the partnership, compensatory and punitive damages, and attorney’s fees and costs. (Doc. No. 1). Id. The defendants having filed a motion to dismiss and/or change venue, by order dated January 10, 2005, the District of New Jersey directed that the matter be transferred to the Middle District of Pennsylvania. Upon transfer, the parties consented to the jurisdiction of the undersigned on March 29, 2005. (Doc. No. 9). On June 11, 2007, the plaintiffs filed an amended complaint, which sets forth the following fourteen counts: Count I — -Intentional Fraud; Count II-Equitable Fraud; Count III — Misappropriation; Count IV — Conversion; Count V-Intentional Violation of Fiduciary Duties; Count VI- — Breach of Fiduciary Duties; Count VII — Breach of the Implied Covenant of Good Faith & Fair Dealing; Count VIII— Declaratory Relief Invalidating the Partnership Documents; Count IX — Invalidation of Partnership Documents for the lack of a Proper Party; Count X — Rescission Based on Conflict of Interest; Count XI— Unjust Enrichment; Count XII — Intentional Impairment of Income / Loss of Income; Count XIII — Accounting; and Count XIV — Violation of the Lanham Act. (Doc. No. 61). They continue to seek a disgorgement and return of the $340,000 they invested in the partnership, as well as declaratory and injunctive relief, monetary damages, and attorney’s fees and costs. Id. On July 3, 2007, the plaintiffs filed the instant motion for partial summary judgment, (Doc. No. 70), together with a supporting brief, (Doc. No. 71), and statement of material facts, (Doc. No. 72). Various exhibits were also filed. (Doc. Nos. 77-81). On July 6, 2007, the defendants filed the instant motion to dismiss the amended complaint. (Doc. No. 65). The defendants also filed a brief in opposition" }, { "docid": "1166861", "title": "", "text": "so that it is fit for ordinary use....” Id. at 754, 435 N.E.2d at 451. CONCLUSION The district court properly dismissed Count VIII on the ground that it was barred by the statute of limitations. Counts I and II were, properly dismissed since, under Illinois law, they allege only economic loss and therefore cannot constitute the basis -of a tort claim. Count III was properly dismissed since it is derivative of Counts I and II. Accordingly, the judgment of the district court is AFFIRMED. . There are twelve named appellants in this action. Chicago Heights Venture, the principal appellant, is a limited partnership. The other appellants are either general or limited partners. TMG Corporation and Gerald D. Gillman are general partners. The limited partners are: Bernard Klebanow, Amy S. Cohen, Richard J. Scheuer, Donald E. Peiser, Leon Meyers, Claude ' N. Rosenberg, Jr., Louise J. Rosenberg, Martin Bernstein, and David Schulman. . The procedural history of this case is rather complicated and requires summation before we continue. The appellants’ eight count amended complaint was filed on May 4, 1983. Counts I, II, IV, and V alleged actions against both defendants, DNA and B & K. Count I was based on strict tort liability; Count II alleged negligent damage to property. Counts IV and V alleged actions based on express and implied warranty, respectively. Counts III, VI, and VII applied to DNA alone. Count III sought recovery for willful and wanton damage to property. Count VI sought recovery for fraud, and Count VII alleged an action for breach of contract. Finally, Count VIII alleged an action for breach of contract against B & K alone. The district court dealt with subsets of these counts in each of its five memorandum opinions. In its order of November 21, 1983, 575 F.Supp. 214, the district court dismissed Counts III, VI, and VII and the portions of Counts I, II, and V which alleged claims against DNA. In its second order, filed March 26, 1984, the court reinstated Count VII against defendant DNA. However, in the same opinion, the court also dismissed the portions" }, { "docid": "13624887", "title": "", "text": "in concert to cause the Cowboys Partnership to breach express provisions of the Trust and License Agreements and the implied covenant of good faith. Count IV maintains that the Cowboys Partnership has breached its obligations as a settlor of the NFL Trust and as an owner of marks licensed to Plaintiff. Count V alleges that, by engaging in the scheme set forth in the Complaint, the Cowboys Partnership and Defendant Jones have violated fiduciary duties owed to Plaintiff and the other Member Clubs. Count VI asserts that Defendants have been unjustly enriched by their scheme, Count VII that they have misappropriated revenue belonging to Plaintiff, and Count VIII that they have tortiously interfered with contractual rights granted by Plaintiff to its licensees. Finally, Count IX seeks a declaratory judgment establishing that Defendants’ actions violate the law, as set forth in Counts I through VIII. Defendants deny that their actions in any way violate either the Trust Agreement or the License Agreement. In support of their argument, Defendants have submitted copies of the contracts Texas Stadium entered into with Nike, Pepsi, and Dr. Pepper, as well as the contract it eventually entered into with American Express. Defendants maintain that none of these contracts grant sponsors the right to use any Trust Property — namely, either Club Marks or NFL Marks; indeed, they note that the contracts with Pepsi, Nike and American Express explicitly state that the sponsor is not entitled to use any Club Marks. See Pepsi Contract, Ex. F to Cass Affid., at ¶ 12; Nike Contract, Ex. G to Cass Affid., at ¶ 8(H)(II); American Express Contract, Ex. H to Cass Affid., at ¶ 8. Defendants argue that all of Plaintiffs claims are based on false assertions that are refuted by the underlying contracts, and that Plaintiffs action should therefore be dismissed. II. Legal Standard In evaluating a motion to dismiss, courts must accept as true the factual allegations contained in the complaint. See Cohen v. Koenig, 25 F.3d 1168, 1171 (2d Cir.1994). All reasonable inferences must be drawn in favor of the non-moving party on such a motion." }, { "docid": "504472", "title": "", "text": "HB entities’ action is derivative and they believe this provides a special reason that the Partnership must be joined. They cite to many eases finding the Partnership to be an indispensable party in derivative actions. See, e.g., Bankston v. Burch, 27 F.3d 164, 167-68 (5th Cir.1994); Buckley v. Control Data Corp., 923 F.2d 96, 98 (8th Cir.1991). 1. Is this Action Derivative? As a preliminary matter, we are not at all certain that this is a derivative action. It is true that Delaware courts have stated the general rule that whether an action is derivative or direct depends on whether the harm alleged by the plaintiff is independent of harm suffered by the corporation or partnership itself. See Kramer v. Western Pacific Industries, Inc., 546 A.2d 348, 351-52 (Del. 1988); Litman v. Prudential-Bache Properties, Inc., 611 A2d 12, 15 (Del.Ch.1992); see also generally 12B Fletcher’s Cyclopedia of Corporations § 5911, at 483-84. And here the harm alleged by the HB entities — breach of Manchester’s obligation to provide capital to the Partnership — was suffered by the partners only through its harm to the Partnership. But, in this case brought by those in control of the Partnership, the action may still not be derivative. The derivative action device, with its attendant demand requirement, was developed to aid investors who have no control over a company redress harms to the company in the face of management’s inaction. See Ross v. Bernhard, 396 U.S. 531, 534, 90 S.Ct. 733, 735-36, 24 L.Ed.2d 729 (1970); 2 Bromberg & Ribstein, supra s 5.05(a), at 5:35 (“The substantive distinction [between direct] enforcement of a partnership right by fewer than all the partners [and a derivative action] is not always clear but seems to be this: In a derivative suit, the plaintiff partner is typically acting against the wishes of those partners who have deci-sionmaking authority for enforcement of the partnership right....”); see also DehCode Ann. tit. 6, § 17-0001 (stating, in the sub-chapter entitled “Derivative Actions,” “A limited partner may bring an action in the Court of Chancery in the right of a limited partnership" }, { "docid": "404028", "title": "", "text": "or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce ... Personal jurisdiction under New York’s long-arm statute further requires not only that the defendant transact business in the state but that the cause of action arise from the in-state transactions. Davis v. Costar-Gavras, 595 F.Supp. 982 (S.D.N.Y.1984). The Amended Complaint contains thirteen causes of action, which can be separated into three categories: 1) Contract claims against EMI only, arising from EMI’s receipt of rights and title to five of the Songs in settlement of its suit against Saturday and its concurrent assumption of obligations under the original songwriter/publisher contracts between Saturday and plaintiffs Linzer and Randell. Those claims are for breach of contract (Count V), tortious breach of the covenant of good faith and fair dealing (Count VI), breach of fiduciary duty (Count VII), and an accounting (Count X) (collectively, the “Contract Claims”). 2) Claims arising from Plaintiffs’ assertion of copyright renewal rights in the Songs, brought against both EMI and Moving Defendants. Those claims are for declaratory relief (Count I), copyright infringement (Count II), unfair competition (Count III), and tortious interference with contractual relations (Count IV) (collectively, the “Renewal Rights Claims”). 3) Claims brought only against Moving Defendants in connection with their continued licensing of the Songs and enrichment therefrom. Those claims are for breach of fiduciary duty (Count VIII), constructive trust (Count IX), an accounting (Count XI), conversion (Count XII), and unjust enrichment (Count XIII) (collectively, the “Licensing Claims”). The Motion to Dismiss for Lack of Jurisdiction Will Be Granted as to Seasons Four As a threshold matter, the question of jurisdiction in this matter is complicated by the parties’ conflicting allegations regarding the existence or non-existence of Seasons Four. The Amended Complaint alleges that Seasons Four is a California corporation that is still in existence. Bennett, however, alleges in his affidavit that the corporation was “de facto dissolved” prior to 1978. In support of that allegation, Moving Defendants have submitted two documents. Appended to Bennett’s declaration is a certificate of acknowledgement signed by Gaudio, transferring" }, { "docid": "21940652", "title": "", "text": "of the conspiracy. Id. at 1361 (citing Czarnecki v. Roller, 726 F.Supp. 832, 840 (S.D.Fla.1989)) (discussing and applying Florida law). Pursuant to this rule, a claim that is found not to be actionable cannot serve as the basis for a conspiracy claim. Id. (citing Posner v. Essex Ins. Co., 178 F.3d 1209, 1217 (11th Cir.1999)) (applying Florida law). Because the Court has found that none of Plaintiffs other claims can proceed, Plaintiffs civil eonspiracy claims necessarily fail as a matter of law. See id. (“Because the claim underlying the plaintiffs’ conspiracy count has failed, and the plaintiffs have not asserted any other unlawful action in support of their conspiracy count, count III must also fail.”) IV. Conclusion Based upon the foregoing, it is hereby ORDERED that: (1) The Transamerica Defendants’ Motion to Dismiss [DE-42] is GRANTED; (2) The Allstate Defendants’ Motion to Dismiss [DE-43] is GRANTED; (3) Plaintiffs claims are DISMISSED WITH PREJUDICE. (4) This case is CLOSED. All pending motions not ruled upon are DENIED as moot. . The Transamerica Defendants and the Allstate Defendants are referred to collectively as “Defendants.” . Plaintiff’s original complaint alleged counts of common law fraud (Counts I — II), negligent misrepresentation and omission (Counts III— IV), breach of contract (Counts V-VI), rescission of an annuity contract (Counts VII-VIII), negligent hiring (Counts IX-X), and breach of fiduciary duty (Counts XI-XII) against both the Transamerica Defendants and the Allstate Defendants. . The Court addresses several other grounds for dismissal of Plaintiffs’ tort claims later in this Order. . As the Court discussed in its March 23rd Order, the economic loss rule provides that contract principles are more appropriate than tort principles for resolving economic losses without accompanying physical injury to property other than that which is the subject of the contract. Medalie v. FSC Securities Corp., 87 F.Supp.2d 1295, 1299-1300 (S.D.Fla.2000). “Where the facts surrounding a breach of contract action are indistinguishable from an alleged tort, and where the alleged tort does not cause harm distinct from that caused by the breach of contract, a plaintiff is barred from bringing a separate tort action.” Eye" }, { "docid": "4746674", "title": "", "text": "on the Applications. In this respect, we agree with the U.S. Trustee. The Debtors have not attempted to justify the need for the Report as a defense tool in connection with the separate claims against the Debtors in the State Court Action for which the Report was prepared. Indeed the Debtors have never contended that the Zelenofske investigation would have been initiated if Steinman’s claims were only directed at Debtors. Rather Debtors have engaged in the following flawed logic: (1) The Report is needed to defend the Steinman Litigation; (2) Debtors are defendants in the Steinman Litigation; and (3) Debtors should retain Zelenofske to investigate the charges and prepare the Report. This syllogism fails to account for the differing nature of Steinman’s claims against the Debtors, the Spencers and Group. While Debtors have not focused on the necessity of the investigation vis-a-vis the claims against Debtors, we will do so. Argus is named in Counts II, III, IV, VII and VIII. The only counts that involve Phoenix are Counts V, VII and VIII. A perusal of Counts II, III and IV reveals no averments relating to the conduct of Argus and focuses on Argus’ awareness of and benefit from the alleged fraudulent and negligent misrepresentations and material omissions of C. Spencer and Group. The thrust of the investigation was to determine the propriety of payments to the Spencers and Group. Zelenofske’s conclusions do not appear directed to the defense of Argus in Counts II, III and IV. Count VII seeks an accounting, and Count VIII claims breach of the partnership agreement by reason of the encumbrance of partnership property without partner consent. Count V seeks a receivership for the partnership based on the alleged fraudulent conduct of C. Spencer. The Zelenofske investigation was directed at these charges and the requests for legal and equitable relief against Phoenix and Argus. Yet we do not believe that Zelenofske, being directed by C. Spencer, is sufficiently independent to respond to those claims on behalf of the Debtors. For example, in examining the propriety of a loan which required partner consent, it relied solely" }, { "docid": "6151295", "title": "", "text": "law. Count VI is directed against defendants Shamah and Gumenick. It seeks a declaration that a promissory note and deed of trust, obtained by them from the joint venture some two years after the plaintiff’s purchase of their interests in Cedar Bayou, are null and void. Count VII is directed against Brunswick Management Corporation. It seeks a declaration that the agreement by which Brunswick receives fees for operating the real estate owned by the joint venture is null and void and a money judgment for fees already paid. Count VIII is directed against the law firm and its partners. It seeks damages for legal malpractice in the drafting of the “private placement memorandum” that was allegedly relied upon by plaintiffs, as clients of the firm, when they purchased interests in Cedar Bayou. On January 31, 1978, counsel for the plaintiffs filed a motion on behalf of Cedar Bayou, as an entity, to intervene as a party plaintiff in this action. The motion asserted that the applicant was entitled to intervene in these proceedings as a matter of right under Rule 24(a)(2) of the Federal Rules of Civil Procedure; alternatively, it sought permissive intervention under Rule 24(b). This motion for intervention was filed in response to an argument raised by defendants Shamah and Gumenick that Count VI of the complaint should be dismissed because it stated a cause of action belonging to Cedar Bayou itself and not its individual limited partners. The complaint in intervention incorporated Counts VI, VII and VIII of the plaintiffs’ complaint. On March 6, 1978, the district court denied the motion for intervention. With respect to the claim that Cedar Bayou could intervene as a matter of right, the court stated that the partnership did not have the requisite interest relating to the property or transaction which is the subject of this action. The court characterized Cedar Bayou’s complaint as raising claims for mismanagement and breaches of duty by the defendants unconnected with the sale of interests in the limited partnership. Permissive intervention was denied on jurisdictional grounds, and because the court, in the exercise of its" }, { "docid": "15465007", "title": "", "text": "in addition to the misappropriation of trade secrets to allow them to remain. Plaintiff has alleged in its pleadings and at oral argument that it seeks recovery not only for the misappropriation of trade secrets, but for the method and manner defendants used to accomplish the alleged misappropriations, the head start in the industry they derived because of the misrepresentations, the technical assistance and support received from MDS employees, and for defendant Knoll’s misrepresentations of who he was and what his intentions were. A full record at trial is necessary to determine whether these facts were indeed present, or whether the only real harm was the alleged misappropriation of trade secrets. If the facts at trial disclose that the whole of plaintiffs case involves the misappropriation of trade secrets, those counts will be dismissed which are merely duplicative of the MUTSA. However, until a full factual record is established, there exist genuine issues of material fact and defendants’ motion for partial summary judgment will be denied. IV. PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT. Plaintiff requests summary judgment as against the defendants on four common law counts: unfair competition, misrepresentation, unjust enrichment, and conversion. Plaintiff has pointed to various admissions, correspondences of the defendants, and actions taken by the defendants to prove that they are liable under these causes of action. Defendants, on the other hand, have offered a different view of the facts and have pointed out additional ones not relied on by plaintiff. The court finds that these differences involve genuine issues as to material fact, and in light of the fact specific nature of these claims, the court will deny plaintiff’s motion for partial summary judgment. Based on the record as presently constituted, the arguments of counsel, and all the files and records herein, IT IS ORDERED That: 1. Defendants’ motion for partial summary judgment on Counts II, III, IV, V, VI, VII and VIII is DENIED. 2. Plaintiff’s motion for partial summary judgment on Counts IV, V, VII, and VIII is DENIED." }, { "docid": "14387708", "title": "", "text": "set forth in the Partnership Agreement. Because any rights the plaintiffs might have to their $340,000 are defined by the terms of the Partnership Agreement, which has been determined to be an enforceable contract, they cannot sue in tort for conversion of that money. Instead, any rights to their $340,000 would properly be protected by a contract action seeking enforcement of the Partnership Agreement or damages for its breach. Unfortunately for the plaintiffs, however, because they have not pled any breach of the Partnership Agreement, their claim for conversion must be dismissed under the “gist of the action” doctrine. The defendants’ mo tion to dismiss is therefore granted as to Count IV. Breach of Fiduciary Duty In their amended complaint, the plaintiffs advance three separate claims concerning the fiduciary duties of honesty, good faith, loyalty, and fair dealing that Mr. Hassam allegedly owed to Mr. Rahem-tulla. (Doc. No. 61, Counts V-VII). In the interest of avoiding any redundancy in this discussion, the three claims will be combined into a single claim for breach of fiduciary duty. The plaintiffs essentially argue that Mr. Hassam breached his fiduciary duty of honesty, good faith, loyalty, and fair dealing that he owed to Mr. Ra-hemtulla by nature of them being copart-ners by, inter alia, making off with the money that he was entrusted to deposit into the partnership account; keeping business that should have been made available to the partnership; misusing and diverting other partnership property during the operation of the partnership and engaging in acts of self-dealing and otherwise failing to account or respect the interests of Mr. Rahemtulla, his partner, or the partnership itself. (Doc. No. 71 p. 14). As noted above, the plaintiffs’ claim for misappropriation of their $340,000 also falls within these allegations. The defendants contend that these torts are likewise barred by the “gist of the action” doctrine. (Doc. Nos. 65, 86). In a Pennsylvania general or limited partnership, “[t]here is a fiduciary relationship between partners.... [Co-partners owe to one another ... the duty of the finest loyalty.” Clement v. Clement, 436 Pa. 466, 260 A.2d 728, 729 (1970);" }, { "docid": "6485833", "title": "", "text": "I-IV, and VI-VIII.\" The court disregards this statement as it refers to Counts II and VIII, however, because the court finds no connection in those claims to defendants’ alleged misappropriation of plaintiff’s trade secrets, and defendants’ vague preemption contention is therefore insufficient. With regard to Counts I, III, VI, and VII, the court addresses defendants’ claims of ITSA preemption below. Finally, the court need not address defendants' preemption argument regarding Count IV because that claim is dismissed on other grounds. . The ITSA defines a trade secret as: [Information, including but not limited to, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, that: (1) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. 765 ILCS 1065/2. . Defendants also argue that Count V must be dismissed as to those defendants who are not specifically alleged to have engaged in any wrongful conduct. The complaint alleges a summary of activities that amount to misappropriation of trade secrets. Moreover, as Count V states, \"each of the named [d]efen-dants has misappropriated [plaintiff's] confidential and trade secret information.” Taking that allegation as true, as the court must, the court finds that plaintiff has stated a claim sufficient for notice pleading requirements against Staffing Network as well as each of the former employees. . Plaintiff will have to provide a more specific explanation of its trade secrets to survive a motion for summary judgment, however. See Thermodyne Food Serv. Prod., Inc. v. McDonald's Corp., 940 F.Supp. 1300 (N.D.Ill.1996). . Although not really a contract claim, breach of fiduciary duty is more accurately grouped with plaintiff's contract claims than its tort claims. \"An action for breach of fiduciary duty is not a tort; rather, it is controlled by the substantive laws of agency, contract and equity.” Capitol Indem. Corp. v. Stewart" }, { "docid": "11461231", "title": "", "text": "“Litwin, as plaintiffs’ lawyer, employed a device, scheme and artifice to defraud plaintiffs....” Thus, the plaintiffs’ own allegations demonstrate that, with respect to Litwin, they are charging wrongdoing in the provision of legal services. Accordingly, Count V must be dismissed. c. Count VI Count VI alleges common law fraud and deceit. It is subject to a five-year statute of limitations, Ill.Rev.Stat. ch. 110, 1113-205, but fraudulent concealment tolls the statute until the discovery of the fraud, Ill.Rev.Stat. ch. 110, ¶ 13-215. See Suslick v. Rothschild Securities Corp., 164 Ill.App.3d 589, 115 Ill.Dec. 189, 517 N.E.2d 600 (1987), appeal granted, 119 Ill.2d 575, 119 IllDec. 399, 522 N.E.2d 1258 (1988). Because the plaintiffs have adequately pleaded fraudulent concealment, the statute did not begin to run until September, 1986. The motion to dismiss this count will therefore be denied. d. Counts VI, VIII, XI, XII As the defendants point out, the plaintiffs chose not to respond to the motion to dismiss Counts VII, VIII, XI and XII, implicitly conceding that the defendants’ arguments carried the day. The court will therefore dismiss these claims. e. Count X Count X alleges common law breach of fiduciary duty. It is governed by the same limitations statutes as Count VI, a five-year period subject to equitable tolling. Therefore, the claim is not time-barred (at least not at the pleading stage). The defendants’ alternative argument for dismissal of this count goes to the heart of the case against Litwin. The plaintiffs predicate their breach of fiduciary duty claim on their theory that Litwin was acting as the attorney for the limited partnership and therefore had a fiduciary duty to all of the partners, a duty he breached by misrepresenting and failing to disclose critical facts about the partnership. The defendants call this theory “ridiculous,” citing Gutfreund v. Christoph, 658 F.Supp. at 1395, for the proposition that “mere preparation of projections and offering materials for a limited partnership venture does not create [a] fiduciary duty to limited partners.” Def.Mem. at 26. Why the defendants chose to cite that case eludes this court. Gutfreund held what the defendants say" }, { "docid": "504471", "title": "", "text": "already parties,” and that Vanguard claims no interest different from the interest of the partners that may be impaired by the imposition of the case and that Vanguard’s absence will not “leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations.” Id. at 303-04 (citations omitted); see also DM II, Ltd. v. Hospital Corp., 130 F.R.D. 469, 473 n. 5 (N.D.Ga.1989) (stating, in an action brought by some but not all partners, “Joinder of each non-party partner would ordinarily satisfy Rule 19, since the interests of the partnership would be adequately represented”). Although in some cases the interests of the partners may sufficiently diverge from those of the partnership that the partnership is an indispensable party, we simply cannot conceive of any interest the Partnership has as an entity in this case that will not be advanced by the three partners. D. Derivative Actions The district court and Manchester also attach much significance to whether this action is a derivative action. In their view, the HB entities’ action is derivative and they believe this provides a special reason that the Partnership must be joined. They cite to many eases finding the Partnership to be an indispensable party in derivative actions. See, e.g., Bankston v. Burch, 27 F.3d 164, 167-68 (5th Cir.1994); Buckley v. Control Data Corp., 923 F.2d 96, 98 (8th Cir.1991). 1. Is this Action Derivative? As a preliminary matter, we are not at all certain that this is a derivative action. It is true that Delaware courts have stated the general rule that whether an action is derivative or direct depends on whether the harm alleged by the plaintiff is independent of harm suffered by the corporation or partnership itself. See Kramer v. Western Pacific Industries, Inc., 546 A.2d 348, 351-52 (Del. 1988); Litman v. Prudential-Bache Properties, Inc., 611 A2d 12, 15 (Del.Ch.1992); see also generally 12B Fletcher’s Cyclopedia of Corporations § 5911, at 483-84. And here the harm alleged by the HB entities — breach of Manchester’s obligation to provide capital to the Partnership — was suffered" }, { "docid": "13624886", "title": "", "text": "at 23. The Complaint also alleges that Defendants are negotiating a similar contract with American Express. See id. at ¶ 38. Although all of the contractual arrangements Plaintiff mentions are nominally between the “sponsors” and Defendant Texas Stadium Corporation, Plaintiff claims that Defendants are using Texas Stadium as a “stand in” to help the Cowboys Partnership circumvent its obligations under the Trust and License Agreements. See id. at ¶23. The Complaint further alleges that Defendants misappropriated Club Marks and NFL Marks in solicitation materials they submitted to potential sponsors. In particular, Plaintiff asserts that Defendants used Club Marks — including the Cowboys “Star” logo— and NFL Marks — including the NFL’s “Shield” logo — in the solicitation booklet they sent to Dr. Pepper. See id. at ¶ 29. Plaintiff contends that Defendants had no right to use such marks for any purpose. See id. at ¶ 29. The Complaint contains nine counts. Count I alleges that Defendants’ actions violate § 43(a) of the Lanham Act. Counts II and III assert, respectively, that Defendants have acted in concert to cause the Cowboys Partnership to breach express provisions of the Trust and License Agreements and the implied covenant of good faith. Count IV maintains that the Cowboys Partnership has breached its obligations as a settlor of the NFL Trust and as an owner of marks licensed to Plaintiff. Count V alleges that, by engaging in the scheme set forth in the Complaint, the Cowboys Partnership and Defendant Jones have violated fiduciary duties owed to Plaintiff and the other Member Clubs. Count VI asserts that Defendants have been unjustly enriched by their scheme, Count VII that they have misappropriated revenue belonging to Plaintiff, and Count VIII that they have tortiously interfered with contractual rights granted by Plaintiff to its licensees. Finally, Count IX seeks a declaratory judgment establishing that Defendants’ actions violate the law, as set forth in Counts I through VIII. Defendants deny that their actions in any way violate either the Trust Agreement or the License Agreement. In support of their argument, Defendants have submitted copies of the contracts Texas Stadium" }, { "docid": "404029", "title": "", "text": "Those claims are for declaratory relief (Count I), copyright infringement (Count II), unfair competition (Count III), and tortious interference with contractual relations (Count IV) (collectively, the “Renewal Rights Claims”). 3) Claims brought only against Moving Defendants in connection with their continued licensing of the Songs and enrichment therefrom. Those claims are for breach of fiduciary duty (Count VIII), constructive trust (Count IX), an accounting (Count XI), conversion (Count XII), and unjust enrichment (Count XIII) (collectively, the “Licensing Claims”). The Motion to Dismiss for Lack of Jurisdiction Will Be Granted as to Seasons Four As a threshold matter, the question of jurisdiction in this matter is complicated by the parties’ conflicting allegations regarding the existence or non-existence of Seasons Four. The Amended Complaint alleges that Seasons Four is a California corporation that is still in existence. Bennett, however, alleges in his affidavit that the corporation was “de facto dissolved” prior to 1978. In support of that allegation, Moving Defendants have submitted two documents. Appended to Bennett’s declaration is a certificate of acknowledgement signed by Gaudio, transferring all of the assets of Seasons Four to the Partnership. Moreover, Moving Defendants have submitted a certificate of dissolution from the New York Secretary of State, indicating that Seasons Four was a New York corporation and was dissolved in 1979. Plaintiffs in their brief appear to concede the dissolution of Seasons Four in the context of arguing that the Partnership constitutes a successor-in-interest to Seasons Four. Even construing the facts from the pleadings and affidavits in the light most favorable to the plaintiff, Hoffritz, 763 F.2d at 57, we must conclude that Seasons Four no longer exists. This conclusion does arise from material outside the pleadings. However, it is well-settled that extraneous matter may be used in conjunction with defenses raised under Rule 12(b). See Central Mexico Light & Power Co. v. Munch, 116 F.2d 85 (2d Cir.1940). 5A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure, § 1364, at 468-69 (1990). Unlike motions made under Rule 12(b)(6), which must be converted by a court into a motion for summary judgment before" } ]

[ { "docid": "22745466", "title": "", "text": "in the supplement to petitioner’s asylum application and in petitioner’s testimony; (2) the inconsistencies in the timing of the events surrounding the death of petitioner’s brother; (3) the lack of evidence to corroborate the brother’s death; (4) the inconsistencies in petitioner’s accounts of his departure from Bangladesh and of his arrival to the United States; (5) the inconsistencies between petitioner’s testimony and the Department of State report regarding conditions in Bangladesh; and (6) petitioner’s “extremely unresponsive and evasive” demeanor at his asylum hearing. In affirming the IJ’s decision, the BIA concluded that the first of the grounds supporting the IJ’s adverse credibility finding was, standing alone, “material and dispositive.” Petitioner now challenges the BIA’s af-firmance of the IJ’s 'adverse credibility finding. DISCUSSION Where, as here, the BIA affirmed the IJ’s decision to deny asylum by brief order, we review the IJ’s decision rather than the BIA’s order. See Yu Sheng Zhang v. DOJ, 362 F.3d 155, 158-59 (2d Cir.2004). It cannot be overstated that our review of the IJ’s credibility findings is highly deferential, see Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004), and the IJ’s “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B); see also Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003). ‘Where the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inher ently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.” Zhou Yun Zhang, 386 F.3d at 74 (citations and internal quotation marks omitted). We require, however, that the IJ’s reasons for an adverse credibility finding be “specific” and “cogent,” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks omitted), and that a “ ‘legitimate nexus’ ” exist between these reasons and “petitioner’s claim of persecution,” Xu Duan Dong v. Ashcroft, 406 F.3d 110," } ]

[ { "docid": "19676303", "title": "", "text": "Oy-ekunle v. Gonzales, 498 F.3d 715, 716 (7th Cir.2007); Dong v. Gonzales, 421 F.3d 573, 578 (7th Cir.2005), it is permissible for an IJ to contrast an asylum applicant’s testimony with specific historical facts provided in a country report, see Huang v. Gonzales, 453 F.3d 942, 947 (7th Cir.2006), and that is what the IJ did here. Once Musollari’s credibility was called into question, the IJ was entitled to consider the lack of corroboration for other aspects of his testimony. See Capric, 355 F.3d at 1085-86 (“[I]f the IJ finds the testimony to be incredible, then a convincing explanation of the discrepancies or extrinsic- — and credible — corroborating evidence is required.”); see also Ikama-Obambi v. Gonzales, 470 F.3d 720, 725 (7th Cir.2006) (“[A]n IJ may disbelieve an applicant because she fails to provide corroborating evidence, and subsequently deny her claim.”). Despite having nearly two and a half years to compile his case, Musollari presented no evidence to corroborate the core factual aspects of his claim: his arrests in 1997 and 1998 — during which he testified that he was mistreated — or the ransacking of his house by the police in September of 1997. The IJ noted that corroborating testimony or affidavits from family or friends might reasonably have been obtained “insofar as Albania is not [now] experiencing any civil strife or war and that there are regular commercial contacts and mail contacts with that country.” Finally, the IJ relied on Musollari’s admission that he gave false information to the American Embassy when applying for a travel visa. “Inconsistencies that do not relate to the basis of the applicant’s alleged fear of persecution are less probative than inconsistencies that do.” Balogun, 374 F.3d at 504; see also Korniejew v. Ashcroft, 371 F.3d 377, 383-84 (7th Cir. 2004) (finding that a discrepancy on a collateral matter cannot “form the basis for an adverse credibility finding” on its own). “Nevertheless, multiple misrepresentations to Agency officials can serve as a factor in the credibility calculus.... ” Balogun, 374 F.3d at 504. Accordingly, although the errors in the IJ’s analysis give us pause," }, { "docid": "22316571", "title": "", "text": "PER CURIAM. Petitioner Xu Duan Dong, a native and citizen of the People’s Republic of China (“China”), petitions this Court for review of a December 16, 2002 order of the Board of Immigration Appeals (“BIA”) affirming a December 29, 1997 decision by an immigration judge (“IJ”) that denied petitioner’s application for asylum and for withholding of removal. At the hearing before the IJ, petitioner testified that, having fathered three children, he had suffered persecution, including forcible sterilization, under China’s family-planning policy, and that he had a well-founded fear of further persecution upon return to China. The IJ found petitioner to be not credible, citing inconsistencies among petitioner’s testimony and other evidence in the record, the lack of corroborating documentary evidence, failure of petitioner’s allegations to comport with record evidence on conditions in China, and petitioner’s demeanor at the hearing. Where, as here, the BIA summarily affirmed the IJ’s decision, we review the IJ’s decision rather than the BIA’s order. See Zhang v. DOJ, 362 F.3d 155, 158-59 (2d Cir.2004). Our review of the IJ’s credibility findings is highly deferential, see Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004), and the IJ’s “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B); see also Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003). “Where the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.” Zhang, 386 F.3d at 74 (citations and internal quotation marks omitted). In this case, the IJ found that an essential factual allegation underlying petitioner’s asylum claim — that he was forced to undergo surgical sterilization without an anesthetic—was omitted from petitioner’s three asylum applications. Although petitioner eventually alleged—in a brief affidavit supplementing his third asylum application—that he was forcibly sterilized, the IJ reasoned that a delay" }, { "docid": "22759370", "title": "", "text": "This Court also uses the substantial evidence standard to review credibility determinations, and its review of an adverse credibility determination is “highly deferential.” Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir.2005)(per curiam). “Where the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his [or her] claims of persecution, or on contrary evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.” Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir. 2004). In this case, the IJ and BIA found that the following discrepancies, inconsistencies, and implausibilities, inter alia, caused Yang’s testimony not to be credible: (1) Yang testified that she had an IUD inserted in January 1998, but submitted a document reflecting that she had an IUD inserted in July 1998; (2) Yang testified that after the IUD was inserted, she was required to undergo three or four gynecological checkups a year, but submitted only one certificate stating that she went for an annual checkup in June 1998; (3) When asked to be specific about the number of census and family planning officials that came to her house, Yang did not give consistent numbers; (4) Yang testified that a fine for missing her August 2000 checkup was paid on August 5, but the receipt of the fine in the record reflected that it was paid on August 3, the day it was issued; and (5) Yang stated that her husband was in hiding, but the return address on the letter from her husband was their home address in China, reflecting that he was not in hiding. Although some of the other implausibilities found by the IJ are questionable, this Court cannot conclude that “a reasonable adjudicator [would be] compelled to find otherwise” on the specific grounds listed by the BIA in affirming the IJ. Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir.2005); see INS v. Elias-Zacarias, 502 U.S. 478, 481, n. 1," }, { "docid": "21625845", "title": "", "text": "under the Act. None of those arguments has merit. First, we have already held that the stop-time provision is constitutional (Pinko, 249 F.3d at 189-90). Second, there is no Sixth Amendment right to counsel in deportation hearings, so any claim of ineffective assistance of counsel advanced by Uspango must be based on the Fifth Amendment’s due process guaranty (Xu Yong Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir.2001)). But to meet the standard for a due process violation, Us-pango must show that he was “prevented from reasonably presenting his case” (id., citing Lozada v. INS, 857 F.2d 10, 13-14 (1st Cir.1988)). He has made no effort to do so here. Finally, there is no support for Uspango’s claim that the INS abused its discretion by issuing the Notice when it did. Authority to determine whether and when to initiate removal proceedings rests solely with the INS (Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999); Xu Cheng Liang, 206 F.3d at 315). INS’ initiation of proceedings against Uspango in January 1998 was well within that authority. Conclusion Because Uspango’s removal proceedings commenced after the April 1, 1997 effective date of the Act, he is subject to the ten year physical presence requirement and to the stop-time provision introduced by the Act. And because Uspango had eoneededly not been physically present in the United States for ten years when his proceeding commenced in January 1998, he does not meet the requirements under the Act for cancellation of removal. Us-pango’s petition for review is therefore DENIED. . All further citations to Title 8 provisions will take the form \"Section — ,” omitting the prefatory \"8 U.S.C.” . Uspango’s asylum application read differently: It listed his own date of last arrival into the United States as August 4, 1990, and it specified arrival dates of November 3, 1990 for Leal and March 4, 1994 for Edgar. Those last two dates are difficult to reconcile, for it would surely seem that Leal’s last date of entry must have been later than the time of Edgar’s October" }, { "docid": "22702483", "title": "", "text": "see also Secaidco-Rosales, 331 F.3d at 308 (an adverse credibility finding may not rest on inconsistencies that “do not concern the basis for the claim of asylum or withholding, but rather matters collateral or ancillary to the claim”); Diallo, 232 F.3d at 288 (“relatively minor and isolated” discrepancies in testimony “need not be fatal to credibility” where the disparities “do not concern material facts”). Lin’s omission of her IUD insertion, though, is not merely ancillary or collateral to the persecution complained of, but is rather an important episode in a narrative of continuing persecution at the hands of family planning officials. See Xu Duan Dong v. Ashcroft, 406 F.3d 110, 112 (2d Cir.2005) (per curiam) (finding no error where an adverse credibility finding was based in part on an omission that bore a “legitimate nexus” to the petitioner’s claim of persecution). Although we might question placing dispositive weight on Lin’s neglecting to mention the IUD insertion in her initial application, it was not error for the IJ to consider it in making his credibility determination. We are less comfortable with the IJ’s reliance on another omission: Lin’s husband’s failure to mention in his affidavit in support of her application that he had been detained for one day before her sterilization-—an event that Lin herself testified to in detail before the IJ and which she included in her supplemental affidavit in support of her asylum application. Given Lin’s extensive testimony on this matter, the omission of potential persecution of Lin’s husband in his own affidavit—an omission, incidentally, that was mentioned on the record for the first time in the IJ’s decision—lies within the category of inconsistencies which “do not concern the basis for the claim of asylum or withholding, but rather matters collateral or ancillary to the claim.” Secaida-Rosales, 331 F.3d at 308. The IJ’s reliance on this omission, therefore, was error. Were overreliance on a tangential omission the sole error the IJ made in reaching his adverse credibility determination, this case would likely be akin to those cases in which we have held that, despite some errors, remand to the" }, { "docid": "22537492", "title": "", "text": "but only whether petitioner had previously undergone an abortion, forced or otherwise. Cf. Wu Biao Chen, 344 F.3d at 275 (rejecting petitioner’s “ex post justifications” for discrepancies, including petitioner’s suggestion that immigration officer had made \"a mistake” in drafting airport interview statement). Although we have stated that an IJ is required to \"take .. . into account ... significant factual assertions” offered by a petitioner, see Cao He Lin, 428 F.3d at 403 (emphasis added), we have never required, and we do not require here, that an IJ expressly parse or refute on the record each and every one of a petitioner’s purported explanations for testimonial inconsistencies or evidentiary gaps. See Morales v. INS, 208 F.3d 323, 328 (1st Cir.2000) (\"Where, as here, the [BIA] has given reasoned consideration to the petition, and made adequate findings, we will not require that it address specifically each claim the petitioner made or each piece of evidence the petitioner presented.”) (internal quotation marks omitted); see also 8 C.F.R. § 1240.11(c)(4) (requiring only that \"[a]n adverse decision shall state why asylum or withholding of removal was denied”). Indeed, we presume that an IJ has taken into account all of the evidence before him, unless the record compellingly suggests otherwise. Accordingly, the IJ need not engage in \"robotic incantations” to make clear that he has considered and rejected a petitioner’s proffered explanation. Cf. Brown, 98 F.3d at 694 (rejecting a requirement that district judges engage in \"robotic incantations” in the context of sentencing). . Specifically, petitioner's affidavit submitted in connection with her asylum application indicated that her second pregnancy had been discovered during a required quarterly IUD check-up in October 1997, whereas petitioner testified before the IJ that her second pregnancy had instead been discovered when local birth control officials came to her place of work after she had missed both the July and October 1997 IUD check-ups. Because the circumstances under which petitioner’s second pregnancy was discovered and terminated were material to her claim of past and future persecution, the IJ did not err in relying on this inconsistency. See Xu Duan Dong, 406" }, { "docid": "22663606", "title": "", "text": "if she returned to China, she would be entitled to withholding of removal under the INA. Such relief was denied, however, because the IJ found that petitioner had not met her burden of proof, given that her testimony was “inherently improbable, internally inconsistent, [and] inconsistent with her written application as well as some of her supporting documents.” IJ Decision at 9. Because asylum and withholding of removal determinations require intensive factual inquiries that appellate courts are ill-suited to conduct, the INA tightly circumscribes our review of factual findings, including adverse credibility determinations, by an IJ. See 8 U.S.C. § 1252(b)(4)(B) (providing that on appeal “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”) (emphases added). Under this strict standard of review, “we defer to the factual findings of the BIA and the IJ if they are supported by substantial evidence,” see Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004), and where, as here, the IJ bases his denial of asylum and withholding of removal on a finding that a petitioner’s application is not credible, our review is “highly deferential.” See Zhou Yi Ni v. U.S. Dep’t of Justice, 424 F.3d 172, 174 (2d Cir.2005); Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir.2005); Jin Hui Gao v. U.S. Att’y Gen., 400 F.3d 963, 964 (2d Cir.2005); see also Yun-Zui Guan v. Gonzales, 432 F.3d 391, 396 (2d Cir.2005) (“Reviewing a factfinder’s determination of credibility is ill-suited to attempts to fashion rigid rules of law.”); Zhou Yun Zhang, 386 F.3d at 73 (“When a factual challenge pertains to a credibility finding made by an IJ ... we afford ‘particular deference’ in applying the substantial evidence standard.”) (quoting Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997)). Accordingly, “[w]here the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to" }, { "docid": "22305569", "title": "", "text": "Act’s “one central reason” standard governs Rodas’s case, the BIA held that Rodas had not demonstrated that membership in any social group was “one central reason” for Rodas’s fear of persecution. Id. DISCUSSION I. Legal Standards “Where, as here, the BIA has adopted and supplemented the IJ’s decision, we review the decision of the IJ as supplemented by the BIA.” Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir.2007). Legal issues, and the application of law to fact, are reviewed de novo. Roman v. Mukasey, 553 F.3d 184, 186 (2d Cir.2009). “[B]ecause the IJ found [Rodas] to be credible, we treat the events [ ]he experienced in the past as undisputed facts.” Delgado, 508 F.3d at 705. The agency’s findings of fact are “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir.2005). Accordingly, we review such findings under the substantial evidence standard, which requires that they be supported by “reasonable, substantial and probative evidence in the record when considered as a whole.” Iouri v. Ashcroft, 487 F.3d 76, 81 (2d Cir.2007) (internal quotations marks omitted). “This standard ‘requires a certain minimum level of analysis from the IJ and BIA,’ as well as ‘some indication that the IJ considered material evidence supporting a petitioner’s claim.’ ” Delgado, 508 F.3d at 705 (internal bracket omitted), quoting Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir.2005). “We will vacate and remand for new findings ... if the agency’s reasoning or its factfinding process was sufficiently flawed.” Xiao Kui Lin v. Mukasey, 553 F.3d 217, 220 (2d Cir.2009). Asylum is a discretionary form of relief available to certain aliens who qualify as “refugees” within the meaning of the INA. 8 U.S.C. § 1158(b)(1)(A). In relevant part, the INA defines a “refugee” as a person who is unable or unwilling to return to his or her native country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C." }, { "docid": "22541063", "title": "", "text": "to what extent the IJ is required, if at all, to inform the applicant during the course of the proceedings that he or she is considering a frivolousness determination before he or she renders such a determination. CONCLUSION For the foregoing reasons, we Deny the petitions for review with respect to the IJs’ adverse credibility rulings, GRANT the petitions for review with respect to the frivolousness determinations, VaCate the frivolousness determinations, ReMAnd the cases to the BIA for further proceedings consistent with this opinion, and GRANT stays of removal pending a decision from the BIA on remand. . For example, the IJ erred in: (1) relying on Lin’s infrequent attendance at church to discredit him without considering his testimony that he did not usually have Sundays off and attended whenever he did have time off; (2) relying on Lin's testimony that he was baptized in an official church to find that such a baptism would not have triggered persecution, ignoring Lin's testimony that he was persecuted not for being baptized but rather for attending an underground church; (3) finding an inconsistency between a statement in Lin’s application that he was targeted for preaching and church attendance while ignoring his explanation that he thought asking people to go to church was preaching, see Cao He Lin, 428 F.3d at 403; (4) relying on the vagueness of Lin's testimony concerning his religion and time in prison without probing for details, see Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 152 (2d Cir.2003), overruled on other grounds by Shi Liang Lin, 494 F.3d 296; and (5) stating that Lin offered different explanations for a discrepancy between his household registry and a letter during cross-examination and in his affidavit. . The alien may still be eligible for withholding of removal where a deportation would result in dire persecutions. See 8 C.F.R. § 208.20. . The BIA noted in Y-L—Üist the Form 1-589, which is the asylum application, \"contains a written warning that '[a]pplicants determined to have knowingly made a frivolous application for asylum will be permanently ineligible for any benefits under the Immigration and" }, { "docid": "22179382", "title": "", "text": "OPINION IKUTA, Circuit Judge: Ling Huang, a native and citizen of China, petitions for review of the denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) by the Board of Immigration Appeals (BIA). Because the record in this case does not compel the conclusion that Huang’s testimony was credible and persuasive, we affirm the immigration judge’s determination that Huang failed to carry her burden of proving her eligibility for relief. I Huang entered the United States on May 11, 2006 on a student visa, and applied for asylum and withholding of removal on April 12, 2007. Huang conceded her inadmissibility, and appeared before an immigration judge (IJ) for a merits hearing on January 10, 2008. Huang testified as follows at the merits hearing. While attending an underground Christian “house church” in China, she was arrested and taken to the police station. While in police custody, a female officer pulled her hair, pushed her to the ground, and kicked her. Huang was then placed in a cell and forced to perform manual labor, such as cleaning toilets and moving bricks. After three days, Huang’s family bailed her out of jail for 8,500 RMB and she returned home. She provided a bail receipt from China for the crime of “violating the management of public order with a mob,” but it did not reference her participation in a house church or otherwise corroborate Huang’s testimony. As a condition of her release, Huang signed a document promising that she would not continue to participate in underground Christian activities. She ceased attending underground churches after her arrest, but continued to practice Christianity through private prayer. Following this incident, Huang secured a student visa to the United States with the help of a private agency specializing in foreign study trips. Upon her arrival in the United States, Huang studied at Merced College for six months, but ended her studies after running out of money to pay tuition. Huang claimed that she continued to practice Christianity while in the United States. She stated she was baptized on April 8," }, { "docid": "5425642", "title": "", "text": "resettled, the portion of the IJ’s decision relying on Tandia’s stay in a third country before arriving in the United States cannot support a denial of Tandia’s asylum claim. III. We now turn to the merits of Tandia’s asylum claim. We review the factual findings of an IJ for “substantial evidence,” see, e.g., Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir.2005), and the administrative “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Borovikova v. DOJ, 435 F.3d 151, 154 (2d Cir.2006) (quoting 8 U.S.C. § 1252(b)(4)(B)). When, as in this case, an IJ denies asylum upon an adverse credibility finding, our review is especially deferential. See Zhou Yun Zhang, 386 F.3d 66, 74 (2d Cir.2004). Nonetheless, we require that an IJ’s reasons for such a finding be “specific” and “cogent,” Majidi, 430 F.3d at 80 (quoting Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003)), and that a “legitimate nexus” exist between these reasons and a “petitioner’s claim of persecution,” Xu Duan Dong v. Ashcroft, 406 F.3d 110, 112 (2d Cir.2005) (quoting Secaida-Rosales, 331 F.3d at 307). We conclude that the evidence relied upon by the IJ to find that Tandia did not suffer or fear persecution does not constitute “substantial evidence.” The asylum interview about which the IJ questioned Tandia closely was apparently not recorded anywhere in the record before the IJ, nor is it available to us on review. Based on our review of Tandia’s responses to the IJ’s questions about his asylum interview, we conclude that the IJ’s reliance upon that testimony to find Tandia not credible involved impermissible speculation and conjecture. Specifically, the IJ stated that Tandia’s testimony to the effect that he could not remember whether he had made certain statements at his asylum interview implied that the potential statements might in fact be true. From our review of the record in this case, we cannot conclude that Tandia’s inability to remember whether he made certain statements to the asylum officer — during a conversation of which there is apparently no available record — allows" }, { "docid": "22434431", "title": "", "text": "under review, and denying the petition only where we are satisfied that the errors were not a contributing cause of the denial of relief? See Cao He Lin, 428 F.3d at 401 (\"[W]e are not required to remand where there is no realistic possibility that, absent the errors, the IJ or BIA would have reached a different conclusion.”) (emphasis added). The two positions are not necessarily irreconcilable. It might be that remand is unnecessary either if the record allows us to conclude that the BIA, considering the remanded application on a blank slate, would deny relief, see id. at 402 (stating that remand should not be required where \"overwhelming evidence” supports the agency’s result), or if the IJ’s errors are slight enough, and the unimpeachable findings substantial enough, to assure us that the errors were not decisive factors in the original result. Because we need not resolve any of these questions to decide the instant case, see infra Subsection II.C, we simply note them for future cases. . As noted, above, Li gave a perfectly reasonable explanation for why the same image was used in both certificates: His wife needed a picture of the two of them together for the 1998 certificate, and he was not available to pose for a new picture, so she copied the picture in the 1989 certificate. The IJ never discussed this explanation in his decision. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004) (\"The BIA must give specific, cogent reasons for rejecting the petitioner's testimony.'') (internal quotation marks omitted). . Another reason that the IJ gave for doubting the x-ray certificate — and Li's credibility more broadly — was the one-year discrepancy between his wife's age as listed in that document and in her notarial birth certificate. The difference in age in the documents does not go to the heart of Li's claim of persecution, see Secaida-Rosales, 331 F.3d at 309, nor is it incapable of being explained any number of ways. See, e.g., Chunhong Xu v. Ashcroft, 108 Fed.Appx. 482, 484-85 (9th Cir. 2004) (unpublished). The IJ did not, however, give" }, { "docid": "22434432", "title": "", "text": "reasonable explanation for why the same image was used in both certificates: His wife needed a picture of the two of them together for the 1998 certificate, and he was not available to pose for a new picture, so she copied the picture in the 1989 certificate. The IJ never discussed this explanation in his decision. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004) (\"The BIA must give specific, cogent reasons for rejecting the petitioner's testimony.'') (internal quotation marks omitted). . Another reason that the IJ gave for doubting the x-ray certificate — and Li's credibility more broadly — was the one-year discrepancy between his wife's age as listed in that document and in her notarial birth certificate. The difference in age in the documents does not go to the heart of Li's claim of persecution, see Secaida-Rosales, 331 F.3d at 309, nor is it incapable of being explained any number of ways. See, e.g., Chunhong Xu v. Ashcroft, 108 Fed.Appx. 482, 484-85 (9th Cir. 2004) (unpublished). The IJ did not, however, give Li the opportunity to respond to this perceived inconsistency, see Ming Shi Xue, 439 F.3d at 114-15 (\"[W]hen an inconsistency is not self-evident, an IJ may not rely on it to support a credibility determination without first bringing the perceived discrepancy to the alien's attention, thereby giving the alien an opportunity to address and perhaps reconcile the seeming inconsistency, to the IJ's satisfaction, at the least.”). . In considering this point, we need not determine whether the IJ was justified in faulting Li for not providing corroboration of his wife's forced sterilization in the form of, for instance, an affidavit from his wife. Compare Zhou Yun Zhang, 386 F.3d at 78 (faulting petitioner for failing to produce an affidavit from his wife describing her forced steriliza tion, where the IJ had previously brought the omission to his attention), with Jin Shui Qiu, 329 F.3d at 153 (holding that the BIA must \"anchor!] its demands for corroboration to evidence which indicates what the petitioner can reasonably be expected to provide”). Even assuming arguendo that the IJ" }, { "docid": "22626180", "title": "", "text": "“testified to a significantly different event” that was nowhere outlined in his 1994 application. Far from being “a mere omission” in his paperwork, the BIA concluded that this inconsistency “reaches to the heart of [Ye’s] claim” because “this is the only per-secutory event which the respondent claims happened to him directly, aside from his wife’s alleged abortion.” Upon our review of the record, we agree with the BIA’s assessment that Ye’s inconsistent statements concerning the nature of his mistreatment support the IJ’s adverse credibility finding. In his written application, Ye claimed only that Chinese family planning officials took him to a government office to teach him a lesson, told him to stop speaking out against the abortion, and fined him. He made no mention of any detention or other punishment for his opposition to the family planning policy. In 1995, however, Ye testified that he was detained for three days in a dirty, mosquito-infested room, given no food, and punched and beaten with sticks. He repeated this latter claim, in less detail, at his hearing in 2003. In Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.2005), we held that “an IJ may rely on an inconsistency in an asylum applicant’s account to find that applicant not credible — provided the inconsistency affords ‘substantial evidence’ in support of the adverse credibility finding — without soliciting from the applicant an explanation for the inconsistency.” Because the BIA has “identified a material inconsistency in an aspect of [Ye]’s story that served as an example of the very persecution from which he sought asylum,” id., we hold that the inconsistency afforded substantial evidence to support the adverse credibility finding. See also Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111-12 (2d Cir.2005) (upholding adverse credibility determination where an omission was not “incidental or ancillary” but rather concerned an “essential factual allegation underlying petitioner’s asylum claim”). On appeal, petitioner contends that the reference in his written application to the “Birth Control Officials” bringing him “down to the government office to teach [him] a lesson” is not inconsistent with his later testimony because the “lesson”" }, { "docid": "22537455", "title": "", "text": "as persecution on the basis of political opinion). Consequently, if petitioner had demonstrated to the IJ that there was a clear probability that she would be sterilized if she returned to China, she would be entitled to withholding of removal under the INA. Such relief was denied, however, because the IJ found that petitioner had not met her burden of proof, given that her testimony was “inherently improbable, internally inconsistent, [and] inconsistent with her written application as well as some of her supporting documents.” IJ Decision at 9. Because asylum and withholding of removal determinations require intensive factual inquiries that appellate courts are ill-suited to conduct, the INA tightly circumscribes our review of factual findings, including adverse credibility determinations, by an IJ. See 8 U.S.C. § 1252(b)(4)(B) (providing that on appeal “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”) (emphases added). Under this strict standard of review, “we defer to the factual findings of the BIA and the IJ if they are supported by substantial evidence,” see Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004), and where, as here, the IJ bases his denial of asylum and withholding of removal on a finding that a petitioner’s application is not credible, our review is “highly deferential.” See Zhou Yi Ni v. U.S. Dep’t of Justice, 424 F.3d 172, 174 (2d Cir.2005); Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir.2005); Jin Hui Gao v. U.S. Att’y Gen., 400 F.3d 963, 964 (2d Cir.2005); see also Yun-Zui Guan v. Gonzales, 432 F.3d 391, 396 (2d Cir.2005) (“Reviewing a factfinder’s determination of credibility is ill-suited to attempts to fashion rigid rules of law.”); Zhou Yun Zhang, 386 F.3d at 73 (“When a factual challenge pertains to a credibility finding made by an IJ ... we afford ‘particular deference’ in applying the substantial evidence standard.”) (quoting Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997)). Accordingly, “[w]here the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about" }, { "docid": "22083473", "title": "", "text": "defer to this “adverse credibility finding,” petitioner stated that “[i]n this ease, the [IJ] was concerned with the asylum application submitted by [petitioner]”; in particular, the IJ “was concerned with what he perceived to be a lack of corroborating evidence to support [petitioner’s] claims, and the failure of [petitioner] to include in his application the incidents in which he was assaulted and his friend was murdered.” Id. at 202 (emphasis added). Even in his supplemental brief to the BIA following remand, petitioner noted that “[i]t is not clear from the [IJ’s] decision whether or not the [IJ] made an explicit determination that [petitioner’s] testimony lacked credibility,” but he contended that in any event “not all omissions on an asylum application undermine an applicant’s testimony, and the IJ’s reliance on these omissions to deny [petitioner’s] claim for asylum is misplaced.” Id. at 6. Given petitioner’s opportunity to explain the omissions before the IJ, petitioner’s express and repeated understanding in his initial brief to the BIA that the IJ had made an adverse credibility determination, and petitioner’s argument in his supplemental brief to the BIA following remand that the omissions could not support a denial of his application, petitioner’s claim that he lacked notice of a credibility question or an opportunity to explain the omissions in his asylum application is without merit. II. The BIA’s Adverse Credibility Finding Having concluded that it was within the BIA’s authority to make an adverse credibility determination upon remand, we now turn to whether this determination was supported by substantial evidence and based on specific, cogent reasons bearing a legitimate nexus to the determination. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 333-35 (2d Cir.2006). The murder of petitioner’s friend and fellow LPM activist — which petitioner testified took place in front of him and prompted him to flee to Greece — is not “incidental or ancillary,” but instead goes “to the heart of his asylum claim.” Xu Duan Dong v. Ashcroft, 406 F.3d 110, 112 (2d Cir.2005) (internal quotation marks omitted); cf. Secaida-Rosales, 331 F.3d at 308-09 (finding that, where a" }, { "docid": "15034637", "title": "", "text": "deported. In 2006, the immigration court granted Mr. Lin’s motion to reopen his asylum proceeding. Yu Lin entered the United States in 1998 without appropriate documents. Though she and Jun Lin were born in the same town in China, they did not meet until she arrived in the United States. They married in 1999 and moved to Sturgeon Bay, Wisconsin. The couple have two children born in the United States, one in 2002 and the other in 2005. Mrs. Lin filed her application for asylum in August 2006. Both the Lins’ asylum applications asserted a fear of being sterilized for having two children born outside China, in violation of the nation’s family planning policies. The immigration court consolidated their cases. At the couple’s removal proceeding, both Mr. and Mrs. Lin stated that officials in Fujian province will “definitely” sterilize them if they are deported. The Lins also submitted a letter from Shu Yun Xu, Mr. Lin’s cousin, stating that she had been forcibly sterilized after having a second child in 1996. The United States submitted a copy of a 2007 State Department profile of conditions in China, which said that enforcement of family planning laws was at most “uneven.” While the profile acknowledged reports by asylum seekers from Fujian province of coercive family planning practices, officials “found no evidence of forced abortion,” and physicians in contact with the U.S. Consulate General “have not seen signs of forced abortions or sterilizations.” The IJ denied the Lins’ asylum applications, finding that they were unable to meet their burden of proving that having two U.S.-born children created a well-founded fear of persecution by family planning officials upon their return to China. That his former girlfriend had been compelled to have an abortion was insufficient to establish that Mr. Lin had experienced past persecution in China. And while the IJ believed that the Lins do fear persecution, he found that they failed to present evidence tending to show that this fear was objectively reasonable. The IJ found the letter from Mr. Lin’s cousin inadequate in this regard because she was not similarly situated to" }, { "docid": "11309421", "title": "", "text": "detention center for practicing his religion, and that he was interrogated about his church, severely beaten, and deprived of water and sleep. According to Lin, after his family paid a fine and he was released from detention, he continued to fear persecution and decided to leave the country. He chose to come to the United States because it “is a coun try ... [where] you have freedom to believe and practice your religion.” (J.A. at 181.) He testified that he still practices Christianity and would continue to practice if removed to China. On August 23, 2010, the IJ denied Lin relief and ordered him removed to China. That decision was based on Lin’s failure to file his petition for asylum within one year of his arrival, and on an adverse credibility determination. The IJ found Lin’s testimony unworthy of belief largely because Lin had failed to provide corroborating witness testimony, despite having relatives in the United States, fellow congregants at his church, and an eight month delay in removal proceedings in which to collect evidence. Lin’s appeal of the IJ’s decision was denied by the BIA on August 25, 2011. Lin filed a timely motion asking the BIA to reopen proceedings in his case. He claimed to have previously unavailable evidence showing that he is now wanted for arrest in China for his religious practices. Lin submitted a copy of a summons for his arrest allegedly issued on September 5, 2011, by the “Public Security Bureau” of his hometown, after both the IJ’s August 2010 order and the BIA’s August 2011 denial of appeal. (J.A. at 23.) He also provided documentation of a friend’s arrest in China for practicing Christianity, and letters from that same friend and from Lin’s sister corroborating that Lin is currently wanted for arrest. Finally, he provided a document allegedly from government authorities in his hometown warning students and teachers against “involvement in illegal religious activities” (Id. at 62-63), and a number of photographs purportedly showing that he continues to practice Christianity. Lin did not, however, explain how he obtained this new documentation, nor did he" }, { "docid": "22179383", "title": "", "text": "forced to perform manual labor, such as cleaning toilets and moving bricks. After three days, Huang’s family bailed her out of jail for 8,500 RMB and she returned home. She provided a bail receipt from China for the crime of “violating the management of public order with a mob,” but it did not reference her participation in a house church or otherwise corroborate Huang’s testimony. As a condition of her release, Huang signed a document promising that she would not continue to participate in underground Christian activities. She ceased attending underground churches after her arrest, but continued to practice Christianity through private prayer. Following this incident, Huang secured a student visa to the United States with the help of a private agency specializing in foreign study trips. Upon her arrival in the United States, Huang studied at Merced College for six months, but ended her studies after running out of money to pay tuition. Huang claimed that she continued to practice Christianity while in the United States. She stated she was baptized on April 8, 2007, and provided photographs which she claimed showed her baptismal ceremony, which was performed by another member of the church. According to her testimony, Huang then began to attend a different church in Modesto, California in August 2007, but stopped going after a few months in order to help her uncle on the weekends. Huang did not produce a baptismal certificate or any other evidence corroborating her church attendance in either the United States or in China. Huang testified that she observed Easter and Christmas, and she recited the Lord’s Prayer and other Christian prayers. In a decision issued on January 10, 2008, the IJ found that Huang’s testimony was not credible. She noted two reasons for this conclusion. First, the IJ found that Huang’s demeanor undermined her credibility, noting that Huang paused frequently while testifying “as if to assess the impact of the answer she provided.” Further, the IJ found that Huang’s testimony was “extremely superficial,” and “could easily have been memorized.” Second, the IJ noted that much of Huang’s testimony was unpersuasive and" }, { "docid": "22626181", "title": "", "text": "in 2003. In Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.2005), we held that “an IJ may rely on an inconsistency in an asylum applicant’s account to find that applicant not credible — provided the inconsistency affords ‘substantial evidence’ in support of the adverse credibility finding — without soliciting from the applicant an explanation for the inconsistency.” Because the BIA has “identified a material inconsistency in an aspect of [Ye]’s story that served as an example of the very persecution from which he sought asylum,” id., we hold that the inconsistency afforded substantial evidence to support the adverse credibility finding. See also Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111-12 (2d Cir.2005) (upholding adverse credibility determination where an omission was not “incidental or ancillary” but rather concerned an “essential factual allegation underlying petitioner’s asylum claim”). On appeal, petitioner contends that the reference in his written application to the “Birth Control Officials” bringing him “down to the government office to teach [him] a lesson” is not inconsistent with his later testimony because the “lesson” mentioned in his 1-589 form referred to his having been subjected to a three-day detention and severe beatings. Even were we inclined to credit this argument, “[a] petitioner must do more than offer a plausible explanation for his inconsistent statements to secure relief; he must demonstrate that a reasonable fact-finder would be compelled, to credit his testimony.” Majidi, 430 F.3d at 80 (internal quotation marks and citations omitted). Because Ye has failed to make that showing, and because we are not “charged with the task of justifying the contradictions in asylum applicants’ submissions,” id. at 80-81 (internal quotation marks and citation omitted), we uphold the adverse credibility determinations of the IJ and BIA. In Ming Shi Xue v. BIA 439 F.3d 111 (2d Cir.2006), we recently held that where “the asserted inconsistencies [between a petitioner’s statements] were not so dramatic as to be self-evident,” and where “neither the IJ nor the government identified the concerns undergirding the IJ’s credibility finding before the IJ announced them in his ruling,” the IJ’s adverse credibility determination may be" } ]

[ { "docid": "22674785", "title": "", "text": "the basis of that claim. There is, of course, nothing wrong with seeking relief on the basis of certain statutes because those statutes provide for attorney’s fees, or with amending a complaint to include claims that provide for attorney’s fees. But where it is clear that the claims that provide for attorney’s fees had nothing to do with a plaintiff’s success, Hensley v. Eckerhart, supra, requires that fees not be awarded on the basis of those claims. Prior to 1975, federal provisions for the education of handicapped children were contained in the EHA, passed in 1970, 84 Stat. 175, and amended in 1974, 88 Stat. 579 (current version at 20 U. S. C. § 1400 et seq.). The Act then provided for grants to States to facilitate the development of programs for the education of handicapped children. § 611(a). The only requirements imposed on the States were that they use federal funds on programs designed to meet the special education needs of handicapped children, § 613(a), and that parents or guardians be guaranteed minimum procedural safeguards, including prior notice and an opportunity to be heard when a State proposed to change the educational placement of the child. § 614 (d). See n. 4, supra. The District Court in this case relied on similar reasoning — that Congress could not have meant for a plaintiff to be able to circumvent the EHA administrative process — and concluded that a handicapped child asserting an equal protection claim to public education was required to exhaust his administrative remedies before making his § 1983 claim. See Turillo v. Tyson, 535 F. Supp. 577, 583 (RI 1982), cited in the District Court’s oral decision of April 30, 1982, App. to Pet. for Cert. A40. Because exhaustion was required, the court, relying on New York Gaslight Club, Inc. v. Carey, 447 U. S. 54 (1980), concluded that attorney’s fees were appropriate under § 1988 for work performed in the state administrative process. The difference between Carey and this case is that in Carey the statute that authorized fees, Title VII of the Civil Rights Act of" } ]

[ { "docid": "5979079", "title": "", "text": "1415(b)(l)(C, E). Additionally, the parents or guardian have a right to “an impartial due process hearing which shall be conducted by the State educational agency,” id. § 1415(b)(2), and state agency review of the due process hearing. Id. § 1415(c). Section 1415(e)(2) provides that any aggrieved party may appeal the final decision of the administrative process in either state or federal court. A. Right of Prevailing Party to Maintain Action for Attorneys' Fees The EHA initially did not provide for the recovery of attorneys’ fees. Accordingly, in Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), the Court held that plaintiffs who prevailed at the administrative level could not bring an independent action for attorneys fees. In response to Smith, Congress enacted the HCPA which provides in part: In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents or guardian of a handicapped child or youth who is the prevailing party. 20 U.S.C. § 1415(e)(4)(B). Notwithstanding this provision, the Board initially argues that plaintiffs are not entitled to attorneys fees for work performed at the administrative level, recognizing an apparent split of authority on this issue. In fact, of the many courts to address this issue, only two published opinions hold that a plaintiff may not bring an independent action for attorneys fees under the EHA. Moore v. District of Columbia, 886 F.2d 335 (D.C.Cir.1989) (“Moore I”), vacated, 907 F.2d 165 (D.C.Cir.) (en banc) (“Moore I’), cert. denied, — U.S. -, 111 S.Ct. 556, 112 L.Ed.2d 563 (1990); Rollinson v. Biggs, 660 F.Supp. 875 (D.Del. 1987). The Rollinson decision has been roundly criticized, and has been rejected by at least two courts in this district. See, E.P. v. Union County Regional High School Dist. No. 1, 741 F.Supp. 1144 (D.N.J.1990); Chang v. Board of Educ. of Glen Ridge Township, 685 F.Supp. 96 (D.N.J.1988). In an exhaustive opinion exploring the statutory scheme and legislative history of the EHA and HCPA, Moore I was vacated by the D.C. Circuit by a" }, { "docid": "10462150", "title": "", "text": "MEMORANDUM AND ORDER BRIEANT, Chief Judge. On January 15, 1988, plaintiffs brought this action against the Board of Education of the Croton-Harmon Union Free School District (“Board”) and Thomas Sobel, as the New York State Commissioner of Education (“Commissioner”), pursuant to the Education of the Handicapped Act (“EHA”), as amended by the Handicapped Children’s Protection Act (“HPCA”), 20 U.S.C. Sec. 1415(e)(4)(B), which provides: In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents or guardian of a handicapped child or youth who is a prevailing party. Plaintiffs are seeking the award of costs, including attorney’s fees, incurred in a local administrative proceeding in the amount of $2,774.29, and additional fees and costs incurred in this action. The action against the Board of Education was discontinued without prejudice or costs on March 2, 1988. The Commissioner in oral arguments heard on March 22, 1988, and papers fully submitted as of that date, moved to dismiss the action, or in the alternative for summary judgment, on the following grounds: it is barred by the statute of limitations; the Court lacks subject matter jurisdiction since it is an action solely for attorney’s fees incurred in an administrative proceeding; the Commissioner was not a party to the administrative proceeding; and plaintiffs did not prevail since the hearing officer’s decision is void as a matter of law. This motion is denied in all respects. The Court further concludes it is appropriate to award summary judgment to the plaintiffs, since no genuine issue of material fact remains to be tried and they are entitled to judgment as a matter of law. The EHA, 20 U.S.C. Secs. 1401 et. seq., “represents an ambitious federal effort to promote the education of handicapped children,” Hendrick Hudson Bd. of Educ. v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 3037, 73 L.Ed.2d 690 (1982), through federal funding to state and local school systems. To qualify for federal funding a state must afford handicapped children a free appropriate education and develop a plan to" }, { "docid": "1278658", "title": "", "text": "as a judicial misinterpretation of its intent.” Fontenot v. Louisiana Bd. of Elementary & Secondary Educ., 805 F.2d 1222, 1223 (5th Cir.1986). Congress amended the EHA through the Handicapped Children’s Protection Act of 1986, Pub.L. No. 99-372, 100 Stat. 796 (codified in scattered sections at 20 U.S.C. § 1400 et seq.) (1982 & Supp. 1988) (“HCPA”), whose application Congress made retroactive to the day before the Court announced its decision in Smith v. Robinson. See Pub.L. No. 99-372, § 5. The HCPA, adding § 1415(e)(4)(B), provides: In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents or guardian of a handicapped child or youth who is the prevailing party. The School Board contends that the phrase “action or proceeding” refers only to suits in the district court to enforce the provisions of the EHA. Under this reading of the HCPA, attorneys’ fees would be available only when one party has brought suit after losing at the administrative level. No fees would be available to parents who, like Duane’s parents, prevailed at the administrative level and therefore have nothing to appeal. Absent a continuing dispute between the parties, the parents of a child who prevailed at the due process hearings then could not bring a separate suit for fees in the district court. Duane’s parents contend that the HCPA’s legislative history demonstrates that Congress intended to allow separate suits for attorneys’ fees. They contend that the School Board’s interpretation of the Act would thwart Congress’ intent. They cite ten recent district court opinions considering the question, all but one having decided that parents may bring a separate suit for attorneys’ fees. The district court decided this question of first impression in our circuit in favor of Duane’s parents. The court granted summary judgment, holding that the EHA authorizes a separate action solely for attorneys’ fees and that Duane was the prevailing party below. We review de novo the summary judgment in favor of Duane’s parents. The School Board admits that Duane is properly characterized" }, { "docid": "12064805", "title": "", "text": "KEITH, Circuit Judge. This is an appeal from the dismissal of an action for an award of attorney’s fees pursuant to the Handicapped Children’s Protection Act of 1986 (“HCPA”), 20 U.S.C. § 1415. For the reasons set forth below, we AFFIRM in part and REVERSE in part the district court’s judgment. I. Appellants Herbert Eggers, Joyce Eg-gers and John Eggers by Joyce Eggers, his next friend, requested attorney’s fees and costs for services performed at an administrative hearing and appeal brought pursuant to the Education of All Handicapped Children’s Act (“EAHCA”), 20 U.S.C. § 1400 et seq. Appellees moved the court to dismiss the action on the grounds that the court had no jurisdiction to award attorney’s fees to parents who prevail in administrative proceedings under the EAH-CA. Appellants argued that the HCPA authorized attorney’s fees for prevailing parents at the administrative level. The district court held that the HCPA authorizes attorney’s fees to be awarded to parents prevailing at the administrative level. However, the court dismissed the action with prejudice on the ground that appellants’ counsel are employees of the Protection and Advocacy Division of the Department of Public Advocacy, a publicly funded state agency. Joint Appendix at 25. Following the court’s decision, appellants filed a Motion to Alter and Amend Order and Judgment on July 17, 1987. This motion was overruled by the court, and appellants subsequently appealed to this court. II. At the time this action was filed, John Eggers was a sixteen year old student living with his parents in Louisville, Kentucky. John is a “handicapped child” as defined under the EAHCA. As a handicapped child, John is entitled to a free, appropriate public education pursuant to the EAHCA. Appellees are charged under the EAHCA with providing a free, appropriate public education to John. During the 1985-86 school year, disputes arose regarding the appropriate educational placement and services for John. Appellants requested an administrative due process hearing on the disputed issues. Under the EAHCA, the administrative hearing is a mandatory procedure that must be utilized prior to the initiation of judicial action. See 20 U.S.C. §" }, { "docid": "15161922", "title": "", "text": "As initially enacted, EHA did not provide for recovery of attorney fees. In Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), the Supreme Court held that EHA furnished the exclusive remedy for various kinds of challenges- to state special education programs, thereby foreclosing joinder of claims based on statutes authorizing recovery of attorney fees. See id. at 1006-21, 104 S.Ct. at 3465-73. Congress responded by enacting HCPA, Pub.L. No. 99-372, 100 Stat. 796 (1986). Among other things, HCPA provides: In any action or proceeding brought under this subsection, the court in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents or guardian of a handicapped child or youth who is the prevailing party. 20 U.S.C. § 1415(e)(4)(B). The question posed by this suit is whether HCPA authorizes a court to award fees to a parent who prevails in administrative proceedings required by EHA. After securing an order of special education placement in an administrative proceeding against D.C., Moore filed an action in the District Court seeking to recover her attor ney fees under section 1415(e)(4)(B). The trial judge concluded that HCPA authorized an award of fees to Moore, 666 F.Supp. at 265-66, and such an award was granted. D.C. appealed to this court, arguing that HCPA authorizes the recovery of attorney fees only if the parent loses at the administrative level and then successfully challenges the administrative determination in court. D.C. also challenged the size of the District Court’s fee award as unreasonable. A divided panel reversed, see 886 F.2d at 337-50, and Moore then sought en banc consideration. The court subsequently decided to rehear the case en banc to consider whether HCPA authorizes a court to award attorney fees to a party who prevails in an administrative proceeding under EHA. II. Analysis This case turns on a straightforward issue of statutory construction: does HCPA authorize recovery of fees when a parent prevails in an EHA administrative proceeding or only when the parent loses in such a proceeding and then prevails in a civil action attacking the adverse administrative" }, { "docid": "7215058", "title": "", "text": "ORDER DEVINE, Chief Judge. In each of these consolidated actions, the respective plaintiff, parent of a handicapped child, was successful in procuring educational relief for such child at the administrative level pursuant to the applicable provisions of the Education of All Handicapped Children Act (“EHA”), 20 U.S.C. § 1401, et seq. Thereafter, pursuant to the amendments to EHA made by the Handicapped Children’s Protection Act of 1986 (“HCPA”), codified at 20 U.S.C.A. § 1415 (West Supp. Pamphlet No. 4, Dec. 1986), plaintiffs requested payment of attorney fees from the defendant, Manchester School District (“MSD”). MSD refused on the ground that there was no statutory authority for such payment. The instant complaints followed, and at this stage of the proceedings the issues before the Court arise in the context of the consolidated motion to dismiss filed by MSD and the respective plaintiffs’ objections thereto. For reasons hereinafter detailed, the Court finds that the motion to dismiss must be denied. The Court commences its analysis by turning back a few pages in the calendar of legal history. On July 5, 1984, the Supreme Court ruled that EHA was the exclusive source of rights and remedies in special education cases which fell within its purview. Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984). The effect of this decision was to deprive parents and their handicapped children who successfully litigated rights to such education of an award of attorney fees. Act ing “swiftly, decisively, and with uncharacteristic clarity to correct what it viewed as a judicial misinterpretation of its intent,” Fontenot v. Louisiana Bd. of Elementary and Secondary Educ., 805 F.2d 1222, 1223 (5th Cir.1986), Congress passed HCPA, Pub.L. 99-372, 100 Stat. 796 (amending 20 U.S.C. § 1415) (current version at 20 U.S. C.A. §§ 1400, 1415 (West Supp. Pamphlet No. 4, Dec. 1986)). In relevant part, EHA, as amended by the provisions of HCPA, provides: In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents or guardian of a handicapped child" }, { "docid": "16321363", "title": "", "text": "old. In 1978, Clayton began attending a day program at the Mount Hope School in Nashua, New Hampshire. In January 1983, the Jameses requested that the School District place Clayton in a residential program. The School District rejected their request. The Jameses subsequently moved for a hearing before the Department of Education. On July 25, 1984, the hearing officer determined that Clayton should be placed in a residential facility. Nashua did not appeal the hearing officer’s decision, and the parties settled the matter with the consent of all involved. Clayton was placed in a residential program at defendants’ expense. At that time, attorney’s fees were not available to prevailing parties under EHA, Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), and the Jameses did not apply for such fees. On August 5, 1986, however, Congress amended the Act, permitting parties that prevail in EHA claims to recover attorney’s fees. See Handicapped Children’s Protection Act of 1986 (“HCPA”), Pub.L. No. 99-372, 100 Stat. 796 (1986) (codified as amended at 20 U.S.C. § 1415). In relevant part, the amendment provides as follows: In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents or guardian of a handicapped child or youth who is the prevailing party. 20 U.S.C. § 1415(e)(4)(B). The Jameses did not apply for attorney’s fees at that time. In 1988 the Nashua School District reopened the James case, seeking to place Clayton in a day program. After reviewing the file, the Jameses’ attorney discovered that they could be entitled to recover fees incurred in the earlier action. On November 22, 1988, the Jameses filed the instant action for such fees. Nashua then filed the pending motion for summary judgment. Defendants assert four arguments in support of their motion. The Court discusses each of Nashua’s arguments seri-atim. A. Prevailing Party Nashua contends that the Jameses were not “prevailing parties” at the administrative hearing and therefore do not qualify for attorney’s fees under EHA. After the 1984 hearing, the hearing" }, { "docid": "11048683", "title": "", "text": "MEMORANDUM OPINION LAMBERTH, District Judge. This case comes before this court on plaintiffs’ motion for an award of attorney’s fees under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(e)(4)(B). That statute provides that [i]n any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys’ fees as' part of the costs to the parents or guardian of a handicapped child- or youth who is the prevailing party. Having considered the pleadings and evidence of both parties, this court shall grant plaintiffs’ fee request. _ . I. BACKGROUND The case underlying this attorney’s fee litigation was brought on behalf of fourteen minor plaintiffs by their parents and guardians, claiming that the District of Columbia Public Schools (“DCPS”) had failed to provide the children with appropriate special education and related services in violation of IDEA, 20 U.S.C. § 1400 et seq. In administrative due process hearings, plaintiffs were found to be entitled to special education and related services. After winning on the merits of their case, plaintiffs filed this action for attorney’s fees, expert -witness fees, and costs. Defendants conceded that plaintiffs were prevailing parties for the purposes of § 1415(e)(4)(B) and were entitled to an award of reasonable attorney’s fees- and costs under that statute. On April 23,1993, this court granted plaintiffs’ motion for summary judgment, finding defendants liable for reasonable attorney’s fees but postponing the determination of the amount of such an award. Pursuant to court order, plaintiffs then filed a statement of the amount of attorney’s fees, expert witness fees, costs and expenses incurred. Defendants filed a brief in opposition to that statement, and plaintiffs replied. On November 8, 1993, finding the parties’ submissions inadequate to resolve the attorney’s fee and cost issues, this court ordered plaintiffs to submit evidence of the prevailing market rates for their counsel’s services and to submit a well-documented list of plaintiffs’ expert’s expenses. By the same order, this court required defendants to disclose the hourly rate at which they have historically settled their attorney’s fee disputes with lawyers like plaintiffs’ counsel, to set forth" }, { "docid": "21002863", "title": "", "text": "the national interest for the federal government to assist state and local agencies’ efforts to educate handicapped children. Riley v. Ambach, 668 F.2d 635, 636-637 (2d Cir.1981) (citation omitted). Passed by Congress in 1975, the EHA provides federal money to assist state and local agencies in educating handicapped children. Funding is conditioned upon a state’s compliance with extensive goals and procedures of the EHA designed to ensure that handicapped children are given access to public education. Private parties such as the parents may sue to enforce EHA rights. Moore v. District of Columbia, 666 F.Supp. 263, 264 (D.D.C.1987). In July of 1984, the Supreme Court held that an award of reasonable attorney’s fees was not available to the prevailing party in an action brought under the EHA. Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984). Acting “swiftly, decisively, and with uncharacteristic clarity to correct what it viewed as a judicial misinterpretation of its intent,” Fontenot v. Louisiana Bd. of Elementary and Secondary Education, 805 F.2d 1222, 1223 (5th Cir.1986), Congress passed the HCPA in August, 1986. The HCPA overturned the Supreme Court’s holding in Smith v. Robinson by explicitly providing for the recovery of attorney’s fees for plaintiffs asserting claims to enforce rights that arise under the EHA. It reads: In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents or guardian of a handicapped child or youth who is the prevailing party. 20 U.S.C. § 1415(e)(4)(B). The act was made retroactive to permit recovery of fees for actions brought before the date of the Smith decision which was pending on that date as well as for any action brought after the decision was issued. Pub.L. 99-372 § 5, 100 Stat. 796, 798 (1986). New York State Education Law Primary responsibility for education has traditionally been, and still is, left to the states. To understand the facts of this case a brief exposition of New York State procedures for evaluation and placement of handicapped children, and for appealing" }, { "docid": "1278657", "title": "", "text": "that Duane should be placed in a residential program for autistic children. In September 1986, the parties signed a settlement agreement. The School Board agreed to place Duane in a Jefferson Parish class for high-functioning autistic children. The settlement was silent with respect to attorneys’ fees. Duane’s parents then filed the instant suit, seeking only attorneys’ fees as provided under the Handicapped Children’s Protection Act. II. The Handicapped Children’s Protection Act. The Education of the Handicapped Act (“EHA”), 20 U.S.C. § 1400 et seq., guarantees to all handicapped children a free, appropriate public education. In Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), the Court held that the EHA was the exclusive statutory remedy for deprivations of educational rights which that act creates. The Court further held that because the statute contained no provision for attorneys’ fees, fees were not available in suits brought to enforce those rights. Congress disapproved of the decision in Smith v. Robinson and acted “swiftly, decisively, and with uncharacteristic clarity to correct what it viewed as a judicial misinterpretation of its intent.” Fontenot v. Louisiana Bd. of Elementary & Secondary Educ., 805 F.2d 1222, 1223 (5th Cir.1986). Congress amended the EHA through the Handicapped Children’s Protection Act of 1986, Pub.L. No. 99-372, 100 Stat. 796 (codified in scattered sections at 20 U.S.C. § 1400 et seq.) (1982 & Supp. 1988) (“HCPA”), whose application Congress made retroactive to the day before the Court announced its decision in Smith v. Robinson. See Pub.L. No. 99-372, § 5. The HCPA, adding § 1415(e)(4)(B), provides: In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents or guardian of a handicapped child or youth who is the prevailing party. The School Board contends that the phrase “action or proceeding” refers only to suits in the district court to enforce the provisions of the EHA. Under this reading of the HCPA, attorneys’ fees would be available only when one party has brought suit after losing at the administrative level." }, { "docid": "15161921", "title": "", "text": "state “policy that assures all handicapped children the right to a free appropriate public education.” 20 U.S.C. § 1412(1). To guarantee that the policy is faithfully administered, EHA requires states to afford handicapped children and their parents various “procedural safeguards.” Id. § 1415(a). Included among these procedural safeguards are notice of proposed individualized education programs, see id. § 1415(b)(1)(C); “an opportunity to present complaints with respect to” such programs, id. § 1415(b)(1)(E); “an impartial due process hearing” when such complaints are made, id. § 1415(b)(2); and state agency review of the outcome of any due process hearing, see id. § 1415(c). See generally Honig v. Doe, 484 U.S. 305, 309-12, 108 S.Ct. 592, 596-98, 98 L.Ed.2d 686 (1988). In addition, during the course of any administrative proceeding, handicapped children and their parents have “the right to be accompanied and advised by counsel.” 20 U.S.C. § 1415(d)(1). “[A]ny party aggrieved” by the final outcome of the administrative process may seek judicial review by filing an action in state court or federal district court. Id. § 1415(e)(2). As initially enacted, EHA did not provide for recovery of attorney fees. In Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), the Supreme Court held that EHA furnished the exclusive remedy for various kinds of challenges- to state special education programs, thereby foreclosing joinder of claims based on statutes authorizing recovery of attorney fees. See id. at 1006-21, 104 S.Ct. at 3465-73. Congress responded by enacting HCPA, Pub.L. No. 99-372, 100 Stat. 796 (1986). Among other things, HCPA provides: In any action or proceeding brought under this subsection, the court in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents or guardian of a handicapped child or youth who is the prevailing party. 20 U.S.C. § 1415(e)(4)(B). The question posed by this suit is whether HCPA authorizes a court to award fees to a parent who prevails in administrative proceedings required by EHA. After securing an order of special education placement in an administrative proceeding against D.C., Moore filed an action in the District" }, { "docid": "12064808", "title": "", "text": "court abused its discretion in denying attorney’s fees to counsel because counsel are employed by a state agency. A. Appellants argue that the district court was correct in its holding that the HCPA allows an award of attorney’s fees to plaintiffs who prevail at the administrative level. Appellants contend that New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980), and the legislative history of the HCPA support its position. Appellees rely on North Carolina Department of Transportation v. Crest Street Community Council, Inc., 479 U.S. 6, 107 S.Ct. 336, 93 L.Ed.2d 188 (1986), and argue that the statute at issue in Crest Street, 42 U.S.C. § 1988, is consistent with the HCPA and therefore the holding of Crest Street is applicable to this action. We disagree with the position adopted by appellees and find that the district court was correct in holding that the HCPA does indeed allow an award of attorney’s fees to plaintiffs who prevail at the administrative level. Section 615 of the HCPA, 20 U.S.C. § 1415, establishes administrative procedures “to assure that handicapped children and their parents or guardians are guaranteed ... safeguards with respect to the provision of free appropriate public edu-cation_”20 U.S.C. § 1415(a). These administrative procedures are mandatory. See 20 U.S.C. § 1415(b)(2). 20 U.S.C. § 1415(e)(4)(B) states that “[i]n any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents or guardian of a handicapped child or youth who is the prevailing party.” It is undisputed that appellants prevailed at the administrative level. Thus, the threshold question for review is whether a mandatory administrative hearing is an “action or proceeding” within the meaning of the HCPA. At the time of the enactment of the HCPA, the Supreme Court in Carey had interpreted the terms “action or proceeding” to include mandatory state administrative proceedings. In Carey plaintiff brought an action alleging employment discrimination pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”). As required by §" }, { "docid": "5979078", "title": "", "text": "Strecker program at their expense. Although Mill Creek recommended a sixty day admission, Daniel attended Strecker for twenty-eight days, which exhausted his lifetime insurance benefits for psychiatric care. As a result of the Board’s refusal to pay for the substance abuse program, the plaintiffs sought a hearing before the Department of Education. A hearing was conducted on May 7, 1990. After hearing testimony from Dr. Louis Pica, Jr., a psychologist and one of Daniel’s counselors, Sandra Schoenholtz, Daniel’s father and Dr. Rell, the AU determined that the care in question was medical in nature and thus not a school district responsibility. II. PLAINTIFFS’ ENTITLEMENT TO ATTORNEYS’ AND EXPERT FEES FOR THE FIRST PETITION Under the EHA, federal funding for state special education programs is conditional on the state maintaining “a policy that assures all handicapped children the right to a free appropriate public education.” 20 U.S.C. § 1412(1). The EHA provides for parental notice of proposed changes to the IEP and for an opportunity to present complaints with respect to the child’s IEP. Id. §§ 1415(b)(l)(C, E). Additionally, the parents or guardian have a right to “an impartial due process hearing which shall be conducted by the State educational agency,” id. § 1415(b)(2), and state agency review of the due process hearing. Id. § 1415(c). Section 1415(e)(2) provides that any aggrieved party may appeal the final decision of the administrative process in either state or federal court. A. Right of Prevailing Party to Maintain Action for Attorneys' Fees The EHA initially did not provide for the recovery of attorneys’ fees. Accordingly, in Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), the Court held that plaintiffs who prevailed at the administrative level could not bring an independent action for attorneys fees. In response to Smith, Congress enacted the HCPA which provides in part: In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents or guardian of a handicapped child or youth who is the prevailing party. 20 U.S.C. §" }, { "docid": "12481873", "title": "", "text": "ORDER BUA, District Judge. Plaintiffs move this court pursuant to Fed.R.Civ.P. 54(d) for an award of attorneys’ fees under § 2 of the Handicapped Children’s Protection Act, 20 U.S.C. § 1415(e)(4). For the reasons stated herein, plaintiffs’ motion is granted. I. BACKGROUND The plaintiffs in this case are Max M., a child handicapped within the meaning of the EAHCA, and his parents. For the sake of simplicity, plaintiffs are collectively referred to as the “Ms.” The defendants fall into two categories. The first group, designated as the “state defendants,” consists of (1) the Illinois State Board of Education, (2) Donald Gill, the Illinois Superintendent of Education, and (3) Edward Copeland, the Chairperson of Illinois State Board of Education. The second group, designated as the “local defendants,” consists of (1) New Trier High School District # 203 (District #203), (2) the New Trier District #203 Board of Education, (3) Ronald Bickert, Superintendent of Schools in District # 203, and (4) James Wolter, Director of Special Education for District #203. The Ms’ original complaint presented claims which, although premised on several constitutional and statutory theories, were basically derived from the Education For All Handicapped Children Act (EAHCA). 20 U.S.C. § 1401 et seq. The EAHCA ensures that handicapped children are given access to a free, public education by providing federal funds to assist state and local agencies in meeting the special education needs of handicapped students. Any state educational agency receiving funds under the EAHCA must establish procedures whereby handicapped children and their parents may protect their rights to a “free and appropriate public education.” 20 U.S.C. § 1415(a). In July 1984, the Supreme Court held that attorneys’ fees were not available to a prevailing party in an action under the EAHCA. Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984). Subsequently, in August 1986, Congress amended the EAHCA by enacting the Handicapped Children’s Protection Act (HCPA). 20 U.S.C. §§ 1415(e), (f). The HCPA expressly authorizes the award of attorneys’ fees to prevailing parties in actions proceeding under the EAHCA. By explicitly providing for attorneys’ fees, Congress rejected" }, { "docid": "12481874", "title": "", "text": "although premised on several constitutional and statutory theories, were basically derived from the Education For All Handicapped Children Act (EAHCA). 20 U.S.C. § 1401 et seq. The EAHCA ensures that handicapped children are given access to a free, public education by providing federal funds to assist state and local agencies in meeting the special education needs of handicapped students. Any state educational agency receiving funds under the EAHCA must establish procedures whereby handicapped children and their parents may protect their rights to a “free and appropriate public education.” 20 U.S.C. § 1415(a). In July 1984, the Supreme Court held that attorneys’ fees were not available to a prevailing party in an action under the EAHCA. Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984). Subsequently, in August 1986, Congress amended the EAHCA by enacting the Handicapped Children’s Protection Act (HCPA). 20 U.S.C. §§ 1415(e), (f). The HCPA expressly authorizes the award of attorneys’ fees to prevailing parties in actions proceeding under the EAHCA. By explicitly providing for attorneys’ fees, Congress rejected the holding in Smith. Furthermore, Congress made the attorneys’ fee amendment effective as of July 4, 1984 to fully nullify the effect of the Smith decision. See S.Rep. No. 112, 99th Cong. 2d Sess. 2-3 (1985), reprinted in 1986 U.S. Code Cong. & Admin.News 1798, 1799-1800. II. FACTS The relevant facts concerning the merits have been previously set forth in this court’s five published opinions and need not be detailed for purposes of this order. In this court’s order of July 1,1983, Max M. v. Thompson, 566 F.Supp. 1330 (N.D.Ill.1983) (Max M. I), the Ms’ claims were first addressed. In Max M. I, this court dismissed all claims against all defendants except for the claim against the local defendants under § 1415(e)(2) of the EAHCA for reimbursement of the $8,855 expended by the Ms for Max’ psychiatric psychotherapy. Thereafter, in light of intervening Seventh Circuit precedent, the Ms moved for reconsideration of their previously dismissed compensatory education and procedural due process claims. In Max M. v. Thompson, 585 F.Supp. 317 (N.D.Ill.1984) (Max M. II), this" }, { "docid": "10462160", "title": "", "text": "v. Biggs, 660 F.Supp. 875 (D.Del.1987). The EHA was amended in 1986 with the enactment of the Handicapped Children’s Protection Act of 1986 (“HCPA”), which authorized the award of attorney’s fees. The plain language of HPCA indicates that it applies to administrative proceedings. Specifically Sec. 1415(e)(4)(B) reads: “In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorney’s fees ...” (emphasis added). The term “proceedings” can with logic be read to include both judicial and administrative proceedings. Furthermore, an interpretation of “proceeding” to include administrative proceedings is supported by other language in provisions of the HCPA. Sec. 1415(e)(4)(D) provides in relevant part: No award of attorney’s fees and related costs may be made in any action or proceeding under this subsection for services performed subsequent to the time of a written offer of settlement to a parent or guardian, if — (i) the offer is made within the time prescribed by Rule 68 [Fed.R.Civ.P.], or in the case of an administrative proceeding, at any time more than ten days before the proceeding begins; ... (iii) the court or administrative officer finds that the relief finally obtained by the parents or guardian is not more favorable to the parents or guardian than the offer of settlement, (emphasis added). This provision specifically links “proceeding” with “administrative,” and gives some insight into what is meant by use of the word “proceeding” in Sec. 1415(e)(4)(B). Furthermore, the references to administrative proceedings and officers in Sec. 1415(e)(4)(D) would be meaningless if civil actions in court were the only subject of the amendment. The legislative history also provides strong support for the conclusion that attorney’s fees incurred at the administrative level are recoverable in a separate action in federal court. For example, in House debate, Representative Williams, the floor manager of the house bill, explained the purpose of HCPA to provide that “a parent or guardian of a handicapped child who prevails against a school district or state education agency in a Federal or State court, or an administrative proceeding such as a due process hearing or a State" }, { "docid": "12064809", "title": "", "text": "U.S.C. § 1415, establishes administrative procedures “to assure that handicapped children and their parents or guardians are guaranteed ... safeguards with respect to the provision of free appropriate public edu-cation_”20 U.S.C. § 1415(a). These administrative procedures are mandatory. See 20 U.S.C. § 1415(b)(2). 20 U.S.C. § 1415(e)(4)(B) states that “[i]n any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents or guardian of a handicapped child or youth who is the prevailing party.” It is undisputed that appellants prevailed at the administrative level. Thus, the threshold question for review is whether a mandatory administrative hearing is an “action or proceeding” within the meaning of the HCPA. At the time of the enactment of the HCPA, the Supreme Court in Carey had interpreted the terms “action or proceeding” to include mandatory state administrative proceedings. In Carey plaintiff brought an action alleging employment discrimination pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”). As required by § 706 of Title VII, plaintiff pursued an administrative remedy. A state administrative hearing was held and plaintiff prevailed. No attorney’s fees were awarded. Defendants appealed. Meanwhile, EEOC proceedings had begun and a right-to-sue letter was issued on July 13, 1977. On August 26, the Appeal Board affirmed the administrative decision. Defendants appealed. On September 30, plaintiff filed suit in the United States District Court, alleging claims under 42 U.S.C. § 1981, Title VII and the thirteenth amendment. The complaint also sought attorney’s fees. The Appellate Division of the New York Supreme Court unanimously affirmed the Appeal Board’s determination; defendants then filed a motion to appeal to the New York Court of Appeals. The appeal was denied, and the federal action was dismissed, except for the request for attorney’s fees. The district court denied the request; however, the court of appeals reversed and the Supreme Court affirmed. In dicta, the Supreme Court noted: In sum, we conclude that §§ 706(f) and 706(k) of Title VII authorize a federal-court action to recover an award of attorney’s fees" }, { "docid": "10480068", "title": "", "text": "fees provision to the EHA. The Act was enacted by Congress to in effect nullify an earlier Supreme Court decision holding that attorneys’ fees were not available under the EHA. Following enactment of the HCPA, counsel for the Turtons attempted to negotiate with the District for a payment of attorneys’ fees. When the negotiations failed, counsel filed a motion with the state hearing officer requesting that he be allowed to recover attorneys’ fees for work done in the administrative hearings. The hearing officer properly ruled that he had no authority to hear or rule on petitions for attorneys’ fees and costs. Within thirty days of the hearing officer’s decision, the Turtons filed their request for attorneys’ fees and costs in this court. II. DISCUSSION A. The School District’s Motion to Dismiss The question before this court involves the interpretation of the HCPA. The relevant portion of the Act reads as follows: (e)(4)(B) In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents or guardian of a handicapped child or youth who is the prevailing party. 20 U.S.C.A. § 1415(e)(4)(B) (Supp.1988). The School District contends that the HCPA does not provide a private right of action in federal court to recover attorneys’ fees for work done solely at the administrative level. The District argues that the HCPA allows a court to award attorneys’ fees only after the state administrative process has been exhausted, and the losing party has filed suit in federal court contesting the adverse state rulings. Since the rulings of the hearing officers concerning the merits of Lauren’s case are not being contested in this court, the District contends that the statute does not authorize an award of attorneys’ fees to the Turtons. The School District first points to the plain language of the statute to support its position. Specifically, the District contends that the phrase “any action or proceeding brought under this subsection” restricts the authorization of attorneys’ fees to actions brought in federal court. The District correctly points out that" }, { "docid": "6041088", "title": "", "text": "remedies available under the EHA. Id. at 1021, 104 S.Ct. at 3473. Since the EHA had no provision for attorneys’ fees at the time of Smith, the Court refused to allow such awards. This result prompted the following observation by Justice Brennan: [Wjith today’s decision coming as it does after Congress has spoken on the subject of attorney’s fees, Congress will now have to take the time to revisit the matter. And until it does, the handicapped children of this country whose difficulties are compounded by discrimination and by other deprivations of constitutional rights will have to pay the costs. Id. at 1030-1031, 104 S.Ct. at 3478 (Brennan, J., dissenting). Congress quickly responded to Smith, amending the EHA by enacting the Handicapped Children’s Protection Act of 1986 (HCPA), 20 U.S.C. §§ 1415(e)(4)-1415(f). The relevant provision of the HCPA reads as follows: In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents or guardian of a handicapped child or youth who is the prevailing party. 20 U.S.C. § 1415(e)(4)(B). Such language admits of no ambiguity and clearly supports the rationale given by the Division for denying plaintiffs’ petition for attorney’s fees. The statute unquestionably leaves to the case-by-case discretion of the federal district courts the decision whether or not to award attorneys’ fees in actions brought to enforce provisions of the EHA. A. Legislative History Plaintiffs’ contention that § 1415(e)(4)(B) requires that a separate proceeding be brought in the courts by certain prevailing parties solely for the purpose of recovering attorneys’ fees has ample support in the legislative history. Included in the report submitted by a Senate committee pertaining to the proposed version of the HCPA is the following expression: The committee intends that [§ 1415(e)(4)(B) ] will allow the Court, but not the hearing officer, to award fees for time spent by counsel in mandatory EHA administrative proceedings. Senate Comm, on Labor and Human Resources, Handicapped Children’s Protection Act of 1985, S.Rep. No. 99-112, 99th Cong., 1st Sess. 14, reprinted in 1986 U.S.Code" }, { "docid": "7215059", "title": "", "text": "On July 5, 1984, the Supreme Court ruled that EHA was the exclusive source of rights and remedies in special education cases which fell within its purview. Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984). The effect of this decision was to deprive parents and their handicapped children who successfully litigated rights to such education of an award of attorney fees. Act ing “swiftly, decisively, and with uncharacteristic clarity to correct what it viewed as a judicial misinterpretation of its intent,” Fontenot v. Louisiana Bd. of Elementary and Secondary Educ., 805 F.2d 1222, 1223 (5th Cir.1986), Congress passed HCPA, Pub.L. 99-372, 100 Stat. 796 (amending 20 U.S.C. § 1415) (current version at 20 U.S. C.A. §§ 1400, 1415 (West Supp. Pamphlet No. 4, Dec. 1986)). In relevant part, EHA, as amended by the provisions of HCPA, provides: In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents or guardian of a handicapped child or youth who is the prevailing party. Id. at § 1415(e)(4)(B) (emphasis added). Significant also is the provision now codified at 20 U.S.C.A. § 1415(e)(4)(D): No award of attorneys’ fees and related costs may be made in any action or proceeding under this subsection for services performed subsequent to the time of a written offer of settlement to a parent or guardian, if— (i) the offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of an administrative proceeding, at any time more than ten days before the proceeding begins; (ii) the offer is not accepted within ten days; and (iii) the court or administrative officer finds that the relief finally obtained by the parents or guardian is not more favorable to the parents or guardian than the offer of settlement. (Emphasis added.) Thus, as the amendatory provisions of HCPA make clear, in cases such as these the Court in its discretion may award attorney fees for success at either the administrative or the" } ]

[ { "docid": "22660093", "title": "", "text": "after. The Pra-sads initially applied for asylum in Canada, but eventually entered the United States without inspection in 1991. They sought asylum here. The Immigration Judge and Board both denied their applications, and they petitioned for review. II Under 8 U.S.C. § 1158(a), the Attorney General has discretion to grant an alien asylum if the alien is a refugee. Refugees are defined as aliens who are unable or unwilling to return to their country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). A well-founded fear of persecution requires examination of both objective and subjective components. Estrada-Posadas v. INS, 924 F.2d 916, 918 (9th Cir.1991). The subjective component may be satisfied by credible testimony that the applicant genuinely fears persecution. Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir.1993). The objective inquiry requires “a showing by credible, direct, and specific evidence of facts supporting a reasonable fear of persecution on the relevant ground.” Shirazi-Parsa v. INS, 14 F.3d 1424, 1427 (9th Cir.1994) (internal quotations and citations omitted). Ill We begin by addressing apparent confusion regarding the appropriate standard of review for factual asylum decisions of the Board. The Prasads argued that we, in Ghebllawi v. INS, 28 F.3d 83 (9th Cir.1994), have taken a position in conflict with that of the United States Supreme Court. The Supreme Court, in INS v. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), set forth the standard of review for appeals from the Board pursuant to 8 U.S.C. § 1105a(a)(4), which provides that the Board’s determination regarding a petitioner’s asylum eligibility must be upheld if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” In unmistakably clear language, the Court held that in order to obtain reversal, a petitioner must show “that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Id. at 483-84, 112 S.Ct. at 817. In at least three" } ]

[ { "docid": "22160719", "title": "", "text": "was put on notice of the possibility of staying in the United States by her cousin, yet when Loho learned that her cousin was too busy to assist her, she failed to take any additional steps to avoid returning to Indonesia. We are persuaded that Loho’s two voluntary returns to her home country support the IJ’s adverse credibility finding even though she was not specifically aware of the possibility of applying for asylum. What cuts against Loho’s credibility is not that she failed to submit an asylum application during her previous visits, but that after leaving her home country for the safety of the United States, Loho took minimal steps to investigate the availability of some means of avoiding a return to the country she claims to have feared. In light of the “extremely deferential” review of an IJ’s decision that applies, see Wang v. INS, 352 F.3d 1250, 1257 (9th Cir.2003), such evidence is sufficient to support the IJ’s adverse credibility finding. See Don v. Gonzales, 476 F.3d 738, 743 (9th Cir.2007). Accordingly, we must conclude that Loho has produced insufficient evidence to compel the conclusion that she suffered past persecution or has a well-founded fear of future persecution in Indonesia. Kohli v. Gonzales, 473 F.3d 1061, 1071-72 (9th Cir.2007). III Because Loho’s asylum claim fails, she necessarily cannot satisfy the more stringent standard of proof required to demonstrate eligibility for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Moreover, in light of the IJ’s adverse credibility finding, we are satisfied that substantial evidence supports denial of Loho’s claim under CAT. See Malhi v. INS, 336 F.3d 989, 993 (9th Cir.2003) (noting that relief under CAT requires a showing that “it is ‘more likely than not’ that [the petitioner] will be tortured if returned to [his native land]” (quoting 8 C.F.R. § 208.16(c)(2))); see also Farah, 348 F.3d at 1157 (noting that “[the petitioner’s] claims under the Convention Against Torture are based on the same statements ... that the BIA determined to be not credible”). rv For the foregoing reasons, the petition for review" }, { "docid": "15032269", "title": "", "text": "the evidence of improved country conditions went unrebutted, and ... [Kamalyan] consequently has failed to meet his burden of proof for eligibility for asylum, withholding of removal, and relief pursuant to the Convention Against Torture.” II. We review a denial of asylum eligibility for substantial evidence and must uphold the denial if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole. Li v. Holder, 559 F.3d 1096, 1102 (9th Cir. 2009); Zehatye, 453 F.3d at 1185. “[Administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also INS v. Elias-Zacayias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). “This ‘strict standard’ precludes us from ‘independently weighing the evidence and holding that the petitioner is eligible for asylum, except in cases where compelling evidence is shown.’ ” Gu v. Gonzales, 454 F.3d 1014, 1018-19 (9th Cir.2006) (quoting Kotasz v. INS, 31 F.3d 847, 851 (9th Cir. 1994)). In order to meet its burden of proving a fundamental change of circumstances, the government is “obligated to introduce evidence that, on an individualized basis, rebuts a particular applicant’s specific grounds for his well-founded fear of future persecution.” Popova v. INS, 273 F.3d 1251, 1259 (9th Cir.2001). Where past persecution has been established, generalized information from a State Department report on country conditions is not sufficient to rebut the presumption of future persecution. Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir.2002) (emphasis added). However, an analysis of changed country conditions tailored to the petitioner’s individual claims of persecution is sufficient to rebut the presumption. Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 997-1000 (9th Cir.2003); see also Sowe v. Mukasey, 538 F.3d 1281, 1285 (9th Cir. 2008) (rejecting petitioner’s argument that State Department country reports are “generalized materials” that are insufficient to rebut a presumed well-founded fear of future persecution). III. In concluding that the evidence before the IJ did not establish a fundamental change in conditions for Jehovah’s Witnesses in Armenia, the majority brushes aside Kamalyan’s testimony, and considers only the" }, { "docid": "22694960", "title": "", "text": "the evidence does not compel a finding that future persecution is an objectively reasonable possibility. See id. Because Nahrvani failed to establish eligibility for asylum from Germany, he necessarily failed to demonstrate eligibility for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Finally, substantial evidence supports the IJ’s denial for relief under the CAT, as Nahrvani has presented no evidence to demonstrate that it is more likely than not that he will be tortured if returned to Germany. See Zheng v. Ashcroft, 332 F.3d 1186, 1193-94 (9th Cir.2003). IV. THE BIA’s SUMMARY AFFIRMANCE We need not address Nahrvani’s argument that the BIA improperly streamlined his case pursuant to 8 C.F.R. § 1003.1(a)(7)(ii). Because we reached the merits of the IJ’s decision, it is “unnecessary and duplicative” for us to review the BIA’s decision to streamline. Falcon Car-riche, 350 F.3d at 855. V. CONCLUSION Substantial evidence supports the IJ’s conclusion that Nahrvani was firmly resettled in Germany and thus ineligible for asylum from Iran. Substantial evidence also supports the IJ’s conclusion that Nahrvani is not entitled to asylum, withholding of removal, or CAT relief from Germany. The petition is DENIED. . Neither the IJ or BIA addressed the issue of whether an alien may request asylum from a country of which he is not a citizen. At least one court has ruled that an alien may seek asylum from the country of resettlement. See Rife v. Ashcroft, 374 F.3d 606 (8th Cir.2004). We need not resolve this issue to decide this case. . Nahrvani appeals the denial of asylum from Germany on the basis that he had a well-founded fear of future persecution. . Although Nahrvani testified that he was chased by officials from the Iranian Consulate, he did not provide any details regarding the incident. . Because Nahrvani cannot establish past persecution, he does not receive the benefit of a rebuttable presumption that his fear of future persecution was well-founded. See Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir.2002). B. FLETCHER, Circuit Judge, dissenting. I respectfully dissent from the denial of eligibility for asylum." }, { "docid": "22339797", "title": "", "text": "denied CAT relief because Ramos did not face a clear probably of torture in Honduras. The BIA affirmed in a summary disposition. Ramos timely petitions for review of the denial of asylum and withholding of removal, but not the denial of CAT relief. II. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). When, as here, the BIA summarily affirms the IJ’s decision, we review the IJ’s decision as the final agency action. 8 C.F.R. § 1003.1(e)(4)(ii); Zehatye v. Gonzales, 453 F.3d 1182, 1184 (9th Cir.2006) (citing Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004)). We review the IJ’s legal determinations de novo. See Halaim v. INS, 358 F.3d 1128, 1131 (9th Cir.2004). The IJ’s findings of fact “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we review the IJ’s findings of fact for substantial evidence. Halaim, 358 F.3d at 1131. Additionally, “[w]e accept [the petitioner’s] testimony as true when, as here, the IJ found [him] to be credible.” Id. (citing Salazar-Paucar v. INS, 281 F.3d 1069, 1073 (9th Cir.), amended by 290 F.3d 964 (9th Cir.2002)). III. Congress vested the Attorney General with the discretion to grant asylum to refugees. 8 U.S.C. § 1158(b)(1)(A). The INA defines “refugee,” in relevant part, as: any person who is outside any country of such person’s nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). While asylum is a discretionary form of relief, the Attorney General must grant withholding of removal if “the alien’s life or freedom would be threatened” in the country to which he would be removed because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3)(A). Thus, to be eligible for either form of relief, the persecution feared must be on account" }, { "docid": "22694959", "title": "", "text": "any specific names. In addition, Nahrvani’s assertion is directly contradicted by the testimony of his wife, who stated that the police investigated the complaints, but were ultimately unable to solve the crimes. She also testified that racial issues in no way affected the police’s willingness to help Nahrvani. The evidence simply does not compel the conclusion thát the German government was unable or unwilling' to control those individuals harassing Nahrvani. Although Nahrvani’s fear of returning to Germany is sufficiently credible to satisfy the subjective component of the future persecution inquiry, the evidence must also compel a finding that future persecution is an objectively reasonable possibility. See Hoxha, 319 F.3d at 1182. For many of the same reasons discussed above, Nahrvani’s fear of future persecution in Germany is too speculative to support an asylum claim. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir.2003) (declining to credit a speculative future persecution claim). Nahrvani did not substantiate his claim regarding the German government’s inability or unwillingness to control the asserted persecution from which he suffered. Thus, the evidence does not compel a finding that future persecution is an objectively reasonable possibility. See id. Because Nahrvani failed to establish eligibility for asylum from Germany, he necessarily failed to demonstrate eligibility for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Finally, substantial evidence supports the IJ’s denial for relief under the CAT, as Nahrvani has presented no evidence to demonstrate that it is more likely than not that he will be tortured if returned to Germany. See Zheng v. Ashcroft, 332 F.3d 1186, 1193-94 (9th Cir.2003). IV. THE BIA’s SUMMARY AFFIRMANCE We need not address Nahrvani’s argument that the BIA improperly streamlined his case pursuant to 8 C.F.R. § 1003.1(a)(7)(ii). Because we reached the merits of the IJ’s decision, it is “unnecessary and duplicative” for us to review the BIA’s decision to streamline. Falcon Car-riche, 350 F.3d at 855. V. CONCLUSION Substantial evidence supports the IJ’s conclusion that Nahrvani was firmly resettled in Germany and thus ineligible for asylum from Iran. Substantial evidence also supports the IJ’s conclusion" }, { "docid": "18239930", "title": "", "text": "SELYA, Circuit Judge. The petitioner, Marlene Lisbeth Arévalo-Girón, is a Guatemalan national. She seeks judicial review of a final order of the Board of Immigration Appeals (BIA) denying her application for withholding of removal. After careful consideration, we deny the petition. The petitioner entered the United States on November 1, 1997, without inspection. Some ten years later, the Department of Homeland Security discovered her presence and initiated removal proceedings against her. See 8 U.S.C. § 1182(a)(6)(A)®; id. § 1229a(a)(2). Before the immigration judge (IJ), the petitioner conceded removability but cross-applied for asylum, withholding of removal, and protection under the United States Convention Against Torture (CAT). In support, she asserted that if returned to Guatemala, she would face persecution on account of her status as either a single woman with perceived wealth or a former “child of war.” The IJ determined that her claim for asylum was time-barred; denied withholding of removal on the ground that she had failed to demonstrate a likelihood of persecution in Guatemala on account of a statutorily protected status; and dismissed her entreaty for CAT relief because she had not shown any governmental involvement in the feared harm. The BIA affirmed the IJ’s decision. This timely petition for judicial review followed. In it, the petitioner challenges only the denial of withholding of removal. Because the BIA added its own gloss to the IJ’s reasoning, we review the two decisions as a unit. See Lopez Perez v. Holder, 587 F.3d 456, 460 (1st Cir.2009). In conducting that review, we test the agency’s factual findings, including credibility determinations, under the familiar substantial evidence rule. Morgan v. Holder, 634 F.3d 53, 56-57 (1st Cir.2011). This rule requires us to accept all factual findings that are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.2005) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)) (internal quotation marks omitted). In other words, we must uphold such a finding unless the record compels a contrary conclusion. See 8 U.S.C. § 1252(b)(4)(B); Sompotan" }, { "docid": "22322141", "title": "", "text": "Opinion by Judge SCHWARZER; Dissent by Judge REINHARDT SCHWARZER, Senior District Judge: Husband and wife Grachik and Anik Rostomian, eighty and seventy-seven years old, respectively, are natives and citizens of Armenia. They seek review of an order of the Board of Immigration Appeals (Board) dismissing their appeal from the immigration judge’s order denying their petition for asylum and withholding of deportation. They claim past persecution and a well-founded fear of persecution on account of them ethnicity and Christian beliefs, arising from hostilities on the border between Armenia and Azerbaijan in the Nagorno-Karabakh region. To establish eligibility for asylum, the Rostomians must prove “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.2000). The Board concluded that the Rostomians failed to establish eligibility for asylum. We review the Board’s decision under the deferential “substantial evidence” standard. See Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998). Under that standard, the Rostomians’ petition must be denied unless the evidence they presented “was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Abedini v. INS, 971 F.2d 188, 191 (9th Cir.1992). Mr. Rostomian testified that he sustained knife wounds during an Azeri attack on the Armenian residents of the border town where the Rostomians lived. The Board found that the Rostomians did not establish that the attack was anything more than an act of random violence during a period of significant strife. This is insufficient to establish persecution. See Singh, 134 F.3d at 967. The Board’s finding is supported by substantial evidence. Thus, the Rostomians’ claim that they are entitled to a presumption of a well-founded fear of persecution based on past persecution fails. On the merits, the Rostomians’ claim of a well-founded fear of persecution fails for the same reason. They argue only that “old animosities between Azeris and Armenians still exist.” This is insufficient to establish a well-founded fear of persecution. See id. The Board’s finding that the Rostomians did" }, { "docid": "15032268", "title": "", "text": "on two incidents of beatings by Armenian police in 2001 and 2002 while in detention after being arrested for “proselytizing” in violation of Armenian law. The IJ specifically found Kamalyan to be credible, and found his showing of past persecution sufficient to gave rise to a presumption of a “well-founded fear of future persecution.” See Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir.2006). The IJ found the presumption of future persecution rebutted, however, by Kamalyan’s own testimony and two U.S. State Department reports — Armenia: International Religious Freedom Report 200k (Sept. 15, 2004) (“2004 Religious Freedom Report”), and Armenia: Country Reports on Human Rights Practices — 2003 (Feb. 25, 2004) (“2003 Human Rights Report”)— which indicated that the status and official treatment of Jehovah’s Witnesses and other minority religions in Armenia had fundamentally changed by the time of the hearing on the petition on November 24, 2004. The BIA adopted and affirmed the decision of the IJ because “the country information in the record ... confirms improved conditions for Jehovah’s Witnesses!,] • • • the evidence of improved country conditions went unrebutted, and ... [Kamalyan] consequently has failed to meet his burden of proof for eligibility for asylum, withholding of removal, and relief pursuant to the Convention Against Torture.” II. We review a denial of asylum eligibility for substantial evidence and must uphold the denial if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole. Li v. Holder, 559 F.3d 1096, 1102 (9th Cir. 2009); Zehatye, 453 F.3d at 1185. “[Administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also INS v. Elias-Zacayias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). “This ‘strict standard’ precludes us from ‘independently weighing the evidence and holding that the petitioner is eligible for asylum, except in cases where compelling evidence is shown.’ ” Gu v. Gonzales, 454 F.3d 1014, 1018-19 (9th Cir.2006) (quoting Kotasz v. INS, 31 F.3d 847, 851 (9th Cir. 1994)). In order to meet its burden" }, { "docid": "22786837", "title": "", "text": "D.W. NELSON, Senior Circuit Judge: Afroza and Khandker Hasan, husband and wife, and native citizens of Bangladesh, petition for review of the Board of Immigration Appeals’ denial of their requests for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) found that the Hasans had failed to establish that their past persecution was on account of an enumerated ground, and therefore dismissed their claims for asylum and withholding of removal. The IJ also found that the Hasans had failed to establish that, upon their return to Bangladesh, they were more likely than not to experience torture with the consent or approval of government officials acting in their official capacity, and therefore, denied them relief under CAT. The Board of Immigration Appeals (“BIA”) affirmed the decision of the IJ without opinion. We have jurisdiction pursuant to the Immigration and Nationality Act (“INA”) § 242(a)(1), 8 U.S.C. § 1252(a)(1). We find that substantial evidence supported the IJ’s conclusion that the Hasans had not established eligibility for CAT relief. However, the IJ erred in concluding that the Hasans had not established that their past persecution was on account of political opinion. Accordingly, we grant the petition for review and reverse and remand to the BIA for further proceedings consistent with this opinion. I. Factual and Procedural History The following facts are drawn from the Hasans’ testimony at their asylum hearing, as well as their written application for asylum. Because the IJ did not make an adverse credibility finding, we accept the Hasans’ testimony as true. See Damon v. Ashcroft, 360 F.3d 1084, 1086 n. 2 (9th Cir.2004). A. The Hasans’ Experiences in Bangladesh Afroza Hasan (hereinafter “Afroza,” in order to distinguish her from her husband “Khandker”), the lead petitioner, worked as a reporter for Purnima, a local newspaper in Bangladesh. She primarily reported on women’s issues in the region in which she lived. Afroza was a member of the Bangladesh Nationalist Party (“BNP”), one of Bangladesh’s major political parties. She was also a member of Mohila Parish-ad, a women’s organization that served distressed women in the" }, { "docid": "23579201", "title": "", "text": "voluntarily depart, and thus the IJ denied voluntary departure. In a per curiam order, the BIA affirmed the IJ’s credibility finding and held that the incidents described by the Quomsiehs were insufficient — singularly or cumulatively — to rise to the level of persecution. The BIA further held that the Quomsiehs demonstrated a subjective fear of returning to the West Bank but had failed to show their fear was objectively reasonable. The Quomsiehs contend on appeal that (1) the IJ and BIA erred in denying their application for asylum, withholding of removal, and protection under CAT because they established past persecution and a well-founded fear of future persecution, (2) the record evidence supports a finding that they would more likely than not suffer torture if removed, and thus they are entitled to relief under CAT, and (3) the BIA failed to review the IJ’s denial of voluntary departure, therefore the matter should be remanded to the BIA for proper consideration. We review a BIA’s factual decision under the substantial evidence standard, reversing where petitioners demonstrate “that the evidence was so compelling that no reasonable fact finder could fail to find in favor of the petitioner[s].” Turay v. Ashcroft, 405 F.3d 663, 667 (8th Cir.2005); see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”). Where, as here, the BIA adopts the IJ’s decision and adds its own reasoning, we review both decisions together. See Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir.2006). Asylum may be granted to a refugee. 8 U.S.C. § 1158(b)(1)(A). A “refugee” is defined as a person who is outside his native country and is unable or unwilling to return to his native country “because of persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). “A well-founded fear is one that is both subjectively genuine and objectively reasonable.” Feleke v. INS, 118 F.3d 594, 598 (8th Cir.1997). Subjectively, the petitioner must demonstrate that" }, { "docid": "22341668", "title": "", "text": "it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Knezevic v. Ashcroft, 367 F.3d 1206, 1210-11 (9th Cir.2004). Similarly, we review for substantial evidence the factual findings underlying the BIA’s determination that Ahmed did not qualify for withholding of removal, see Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006), and the BIA’s finding that Ahmed is not eligible for protection under the Convention Against Torture, see Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir.2003). II. Asylum A. Applicable Legal Standard To be eligible for asylum, Ahmed must establish that he is a refugee — namely, that he is unable or unwilling to return to Bangladesh “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Sael v. Ashcroft, 386 F.3d 922, 924 (9th Cir.2004); 8 U.S.C. § 1101(a)(42)(A). The source of the persecution must be the government or forces that the government is unwilling or unable to control. See Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir.2004). To be “well-founded,” an asylum applicant’s “fear of persecution must be both subjectively genuine and objectively reasonable.” Sael, 386 F.3d at 924. “An applicant ‘satisfies the subjective compo-' nent by credibly testifying that[he] genuinely fears persecution.’ ” Id. (quoting Mgoian v. INS, 184 F.3d 1029, 1035 (9th Cir.1999)). “The objective component can be established in two different ways.” Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir.1999). One way to satisfy the objective component is to prove persecution in the past, giving rise to a rebuttable presumption that a well-founded fear of future persecution exists. The second way is to show a good reason to fear future persecution by adducing credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution. Ladha v. INS, 215 F.3d 889, 897 (9th Cir.2000) (internal quotations and citations omitted). While a well-founded fear must be objectively reasonable, it “does not require certainty of persecution or even a probability of persecution.” Hoxha v. Ashcroft," }, { "docid": "22707528", "title": "", "text": "opinion, we review the IJ’s decision as the final agency determination”). Legal determinations are reviewed de novo. Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1126-27 (9th Cir.2007). The substantial evidence standard governs adverse credibility findings and all other factual findings. See Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir.2006); Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001). “Under the substantial evidence standard, ‘administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Zehatye, 453 F.3d at 1185 (quoting 8 U.S.C. § 1252(b)(4)(B)). “[W]e must uphold the IJ’s determination if it is supported by reasonable, substantial, and probative evidence in the record.” Id. (citing INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). IV On appeal, Halim essentially raises three issues: (1) whether the IJ’s conclusion that Halim’s reported incidents of harassment do not constitute persecution is supported by substantial evidence; (2) whether the IJ’s conclusion that Halim does not have a well-founded fear of future persecution is supported by substantial evidence; and (3) whether Halim is entitled to relief or a remand on the basis of his disfavored group claim. A. Halim’s evidence, even if credited, does not compel a finding of past persecution. An applicant bears the burden of establishing that he or she is eligible for asylum. 8 C.F.R. § 208.13(a); see also Zhu v. Mukasey, 537 F.3d 1034, 1038 (9th Cir.2008). Although the term “persecution” is not defined by the Immigration and Nationality Act, “[o]ur caselaw characterizes persecution as an extreme concept, marked by the infliction of suffering or harm ... in a way regarded as offensive.” Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir.2004) (en banc) (citation and internal quotation marks omitted). In Wakkary v. Holder, 558 F.3d 1049 (9th Cir.2009), we noted that “[p]ersecution is an extreme concept that does not include every sort of treatment our society regards as offensive ... mere discrimination, by itself, is not the same as persecution.” Id. at 1059 (citations and internal quotation marks omitted). Here, even taking Halim at his word, he" }, { "docid": "22160720", "title": "", "text": "must conclude that Loho has produced insufficient evidence to compel the conclusion that she suffered past persecution or has a well-founded fear of future persecution in Indonesia. Kohli v. Gonzales, 473 F.3d 1061, 1071-72 (9th Cir.2007). III Because Loho’s asylum claim fails, she necessarily cannot satisfy the more stringent standard of proof required to demonstrate eligibility for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Moreover, in light of the IJ’s adverse credibility finding, we are satisfied that substantial evidence supports denial of Loho’s claim under CAT. See Malhi v. INS, 336 F.3d 989, 993 (9th Cir.2003) (noting that relief under CAT requires a showing that “it is ‘more likely than not’ that [the petitioner] will be tortured if returned to [his native land]” (quoting 8 C.F.R. § 208.16(c)(2))); see also Farah, 348 F.3d at 1157 (noting that “[the petitioner’s] claims under the Convention Against Torture are based on the same statements ... that the BIA determined to be not credible”). rv For the foregoing reasons, the petition for review is DENIED." }, { "docid": "22342977", "title": "", "text": "nexus between any incident and a protected ground under the Act.” Based on its review of the record, the BIA concluded that there was “no evidence the respondent ever expressed a political opinion and no evidence to suggest that she was harmed based on any real or imputed political opinion.” As a result, the BIA denied Garcia-Milian’s asylum and withholding of removal claims. The BIA also rejected Garcia-Milian’s CAT claim. It held that the record did not establish that “it is more likely than not that the respondent will face torture by or with the acquiescence or willful blindness of an officer of the government of Guatemala.” II We have jurisdiction under 8 U.S.C. § 1252 to review final orders of removal. Li v. Holder, 656 F.3d 898, 904 (9th Cir.2011). We review the BIA’s denials of asylum, withholding of removal, and CAT relief for “substantial evidence” and will uphold a denial supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir.2010) (internal quotation marks omitted) (asylum); Pagayon v. Holder, 675 F.3d 1182, 1190 (9th Cir.2011) (internal quotation marks omitted) (withholding of removal); see Haile v. Holder, 658 F.3d 1122, 1130-31 (9th Cir.2011) (CAT relief). In order to reverse the BIA, we must determine “that the evidence not only supports [a contrary] conclusion, but compels it — and also compels the further conclusion” that the petitioner meets the requisite standard for obtaining relief. INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The agency’s “[findings of fact are conclusive unless ‘any reasonable adjudicator’ would be compelled to conclude to the contrary.” Kamalyan, 620 F.3d at 1057 (quoting 8 U.S.C. § 1252(b)(4)(B)). A We begin by considering Garcia-Milian’s challenge to the BIA’s denial of her asylum application. Applicants for asylum bear the burden of proving eligibility for asylum. 8 C.F.R. § 208.13(a). In order to carry this burden, an applicant must first establish “refugee” status, 8 U.S.C. § 1158(b)(1) (2000), by proving past persecution or well-founded fear of future persecution “on" }, { "docid": "22663341", "title": "", "text": "of future persecution. Likewise, he denied withholding of removal on the ground that Zehatye did not demonstrate a clear probability or real likelihood that she would be persecuted if she returned to Eritrea. Additionally, he found no evidence of torture to support a claim for relief under CAT. The BIA summarily affirmed and Zehatye filed this timely appeal, which challenges only the denial of asylum and withholding of removal. When the BIA summarily affirms the IJ’s decision, we review the IJ’s decision as the final agency action. Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004). The decision that an alien has not established eligibility for asylum or withholding of removal is reviewed for substantial evidence. Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir.2004). Under the substantial evidence standard, “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we must uphold the IJ’s determination if it is supported by reasonable, substantial, and probative evidence in the record. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). III. A. Asylum Zehatye claims that she is eligible for asylum because she was persecuted in Eritrea on account of her religion. To qualify for asylum, an applicant must demonstrate that he or she has suffered past persecution or has a well-founded fear of future persecution. 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13(b). Specifically, an alien is eligible for asylum if he or she can show past persecution on account of [race, religion, nationality, membership in a particular social group, or political opinion]. Once past persecution is demonstrated, then fear of future persecution is presumed, and the burden shifts to the government to show, by a preponderance of the evidence, that there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution, or the applicant could avoid future persecution by relocating to another part of the applicant’s country. An applicant may also qualify for asylum by actually showing a well-founded fear of future persecution," }, { "docid": "22467682", "title": "", "text": "could present evidence of his brother’s shooting in Kenya. The BIA acknowledged that the IJ made no adverse credibility finding, but concluded that Njuguna’s fears relied on “implausible and unsupported speculation.” The BIA affirmed the IJ’s decision and denied Njuguna’s motion to re-open. Jurisdiction We have jurisdiction to review final orders of removal. 8 U.S.C. § 1252(a)(1). Jurisdiction over the order removing Njuguna arose when he timely filed a petition for review in this court. See 28 U.S.C. § 2849(a). Discussion I. Standard of Review We review for substantial evidence the BIA’s decision that an applicant has failed to establish eligibility for asylum. Nagoulko v, INS, 333 F.3d 1012, 1015 (9th Cir.2003); Molina-Morales v. INS, 237 F.3d 1048, 1050 (9th Cir.2001). Our review is limited to the administrative record underlying the BIA decision. 8 U.S.C. § 1252(b)(4)(A). Every asylum application is deemed to include a request for a withholding of removal. 8 C.F.R. § 208.3(b). We also review for substantial evidence the BIA’s determination that Njuguna has failed to meet the higher burden required for withholding of removal. Thomas v. Ashcroft, 359 F.3d 1169, 1174 (9th Cir.2004). II. Eligibility for Asylum The Attorney General may grant asylum to a “refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is one who is unwilling or unable to return to his or her native country because of past persecution, or a well-founded fear of future persecution, on account of the individual’s race, religion, nationality, membership in a particular social group, or political opinion. Id. § 1101(a)(42)(A). Njuguna claims a well-founded fear of future persecution in Kenya because of his political opinion. A well-founded fear has both subjective and objective components. Velarde v. INS, 140 F.3d 1305, 1309 (9th Cir.1998), superseded by statute on other grounds as stated in Falcon Carriche v. Ashcroft, 350 F.3d 845, 854 n. 9 (9th Cir.2003). Njuguna established the subjective component with his credible testimony. See Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir.1993). He has the burden of meeting the objective component by demonstrating a well-founded fear of persecution through credible, direct, and specific evidence. See Velarde, 140" }, { "docid": "22339796", "title": "", "text": "the gang, one or two were killed, others were hiding in Honduras, and some fled to the United States. Ramos was afraid that MS-13 members would kill him, but he never went to the police for help. Two of Ramos’ brothers, ages nineteen and twenty, remained in Puerto Cortes. The MS-13 did not bother the nineteen-year old, but started looking for the twenty-year old after Ramos fled. Ramos’ twelve-year old brother lives with his parents, but has not had problems with the gang because he is too young. A sixteen-year old sister also lives with Ramos’ parents. The IJ found Ramos credible, but, even after crediting his testimony as true, denied asylum, withholding of removal, and protection under the CAT. The IJ held that Ramos could not establish eligibility for asylum or withholding because he did not face persecution on account of his membership in a cognizable social group or any political opinion. Alternatively, the IJ held that Ramos did not suffer past persecution or have a well-founded fear of future persecution. The IJ further denied CAT relief because Ramos did not face a clear probably of torture in Honduras. The BIA affirmed in a summary disposition. Ramos timely petitions for review of the denial of asylum and withholding of removal, but not the denial of CAT relief. II. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). When, as here, the BIA summarily affirms the IJ’s decision, we review the IJ’s decision as the final agency action. 8 C.F.R. § 1003.1(e)(4)(ii); Zehatye v. Gonzales, 453 F.3d 1182, 1184 (9th Cir.2006) (citing Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004)). We review the IJ’s legal determinations de novo. See Halaim v. INS, 358 F.3d 1128, 1131 (9th Cir.2004). The IJ’s findings of fact “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we review the IJ’s findings of fact for substantial evidence. Halaim, 358 F.3d at 1131. Additionally, “[w]e accept [the petitioner’s] testimony as true when, as here, the IJ found [him] to be credible.” Id. (citing Salazar-Paucar v." }, { "docid": "19334218", "title": "", "text": "the IJ’s decision insofar as it granted Mu-radin’s request for protection under CAT. The BIA reasoned that although Muradin claimed to fear torture at the hands of the military police, the record did not show that he had been tortured or would likely be tortured upon return to Armenia. Analysis Where the BIA expressly adopts the IJ’s findings and reasoning, as it did in this case with respect to Petitioner’s request for asylum or withholding of removal, we review the decision of the IJ as if it were that of the Board. AV-Harbi v. INS, 242 F.3d 882, 887 (9th Cir.2001). We review for substantial evidence the factual findings underlying the BIA’s determination that Muradin was ineligible for relief under CAT. Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir.2003). This court must uphold the IJ’s findings and conclusions if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (citation omitted). To prevail, Petitioner must demonstrate that evidence in the record compels reversal. Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir.2001). Asylum Muradin first argues that the IJ erred in finding him ineligible for asylum and withholding of removal. To qualify for asylum, an alien must show he is a “refugee” by providing evidence of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42). Muradin asserts that he was persecuted either on account of his membership in a particular social group, specifically former soldiers, or because of imputed political opinion. In affirming the IJ’s denial of asylum and withholding of removal, the BIA stated, “we agree with the Immigration Judge that the harm the respondent testified he suffered and the fears in the future has not been adequately established to be on account of actual or imputed political opinion, membership in a particular social group, or any other ground protected under the Act.” The IJ, however, did not address Muradin’s claim" }, { "docid": "22629212", "title": "", "text": "DeMOSS, Circuit Judge: Petitioners, citizens of Indonesia, were ordered removed by the Immigration and Naturalization Service (“INS”). The Immigration Judge (“IJ”) dismissed their applications for asylum and withholding of removal. The Board of Immigration Appeals (“BIA”) affirmed without opinion. Petitioners contend that fhe IJ erred by denying their applications for asylum. They also assert that the IJ erred by failing to address their claims for relief under the Convention Against Torture (“CAT”). We hold that the IJ committed legal error and therefore reverse and re- raand for further proceedings not inconsistent with this opinion. BACKGROUND Petitioners Jopie Eduard (“Eduard”) and his wife, Yuliana Pakkung (“Pak-kung”), are natives and citizens of Indonesia. Pakkung entered the United States in June 1989, as a nonimmigrant visitor, with permission to remain for six months. Eduard entered the United States in June 1991, as a nonimmigrant crewman, with permission to remain for 29 days. The INS initiated removal proceedings against Pakkung and Eduard in November 2000. Pakkung and Eduard conceded re-movability, and applied for asylum and withholding of removal. The IJ held a consolidated hearing on April 23, 2001. The IJ issued an oral decision denying Eduard’s and Pakkung’s applications for asylum, and denying withholding of removal pursuant to INA § 241(b)(3)(B). 8 C.F.R. § 208.16(b) (2004). The IJ reasoned that neither applicant had established past persecution or a well-founded fear of future persecution. The IJ did not discuss whether removal could be withheld under the CAT. Id. § 208.16(c). A member of the BIA, acting for the board, affirmed the IJ’s decision without opinion. Eduard and Pakkung timely filed this appeal. DISCUSSION Because the BIA summarily affirmed the opinion of the IJ, we review the factual findings and legal conclusions of the IJ. See Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir.2003) (providing that the IJ’s decision is the final agency decision if the BIA summarily affirms). We must uphold the IJ’s factual findings unless we find that they are not supported by substantial evidence in the record. Faddoul v. INS, 37 F.3d 185, 188 (5th Cir.1994). Substantial evidence is lacking only if" }, { "docid": "22175176", "title": "", "text": "denied withholding of removal and relief under the CAT for Ali and her sons. The IJ did grant Ali and her sons’ request for voluntary departure in lieu of removal, designating Somalia as the country of removal. On September 1, 2000, Ali timely appealed these denials to the BIA on behalf of herself and her two sons. The BIA affirmed the IJ without opinion on March 27, 2003. Ali then timely filed this petition for review. II. Standard of Review We review the BIA's decision on whether the petitioner has established eligibility for asylum under the substantial evidence standard. Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir.2004). This standard limits reversals of BIA decisions to situations where the \"Petitioner presented evidence' so compelling that no reasonable factfinder could [fail to] find' that Petitioner has not established eligibility for asylum.\" Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). As the BIA affirmed without opinion under 8 C.F.R. § 1003.1(e)(a), we review the IJ's decision as the final agency determination. Lopez-Alvarado v. Ashcroft, 371 F.3d 1111, 1114 (9th Cir.2004). \"We accept the Petitioner['s] testimony as true when, as here, the IJ found [her] to be credible.\" Halaim v. INS, 358 F.3d 1128, 1131 (9th Cir.2004). III. Discussion A. The Asylum Claim To establish eligibility for asylum, the applicant must first show that she qualifies as a refugee. Immigration and Nationality Act (“INA”) § 208(b), 8 U.S.C. § 1158(b) (giving the Attorney General discretion to grant asylum to any alien deemed a “refugee”). A refugee is one “who is unable or unwilling to return to ... [her native] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). We hold that Ali has met the statutory eligibility for asylum. 1. Ali Suffered Past Persecution on Account of Political Opinion and Membership in a Particular Social Group Although the USC militia was not the ruling" } ]

[ { "docid": "22789206", "title": "", "text": "States, 68 Ct. Cls. 395; W. P. Brown & Sons Lumber Co. v. Commissioner, 38 F. (2d) 425 (C. C. A. 6th); Sabin v. United States, 44 F. (2d) 70 (Ct. Cls.). Denying validity: Joy Floral Co. v. Commis sioner, 29 F. (2d) 865 (Ct. App. D. C.) (same question under § 278 (c) of the Act of 1924, c. 234, 43 Stat. 253, 300) ; Spear & Co. v. Heiner, 34 F. (2d) 795; Pictorial Printing Co. v. Commissioner, 38 F. (2d) 563 (C. C. A. 7th); Columbian Iron Works v. Brock, 34 F. (2d) 816; Chicago Railway Equipment Co. v. Commissioner, 39 F. (2d) 378 (C. C. A. 7th) (both under the 1924 Act); Wetherell Bros. Co. v. White, D. Mass., decided December 3, 1930, U. S. Daily, December 30, 1930, p. 3291 (under § 278 (e) of the 1926 Act, c. 27, 44 Stat. 9, 59). There was doubt whether this provision required the Commissioner both to discover the error in the return and to make ah additional assessment, or merely to,make discovery, within the three years. See Aiken v. Burnet, decided this day, post, p. 280, note 2; W. P. Brown & Sons Lumber Co. v. Burnet, decided this day, post, p. 286, note 2. Compare United States v. Nashville, C. & St. L. Ry., 249 Fed. 678; United States v. Ayer, 12 F. (2d). 194; United States v. Kelley, 24 F. (2d) 234; United States v. Greenfield Tap & Die Corp., 27 F. (2d) 933. The provisions in § 250 (d) of the Revenue Act of 1918- (40 Stat. 1057, 1083) were not in terms retroactive and applied, only to taxes assessed under that Act. Compare Bowers v. N. Y. & Albany Lighterage. Co., 273 U. S. 346, 350; Florsheim Bros. Co. v. United States, 280 U. S. 453, 459, note 5. Even after the Act of 1921 suit might be brought, within the limitation period, though no assessment had been made. See Revenue Act of 1924, c. 234, § 278 (d), 43 Stat. 253, 300. On this question, the Government has uniformly prevailed below." } ]

[ { "docid": "21671937", "title": "", "text": "claimed for depletion and inventory losses. Before the Board of Tax Appeals the taxpayer claimed that the assessment was barred by the provisions then in force of the Revenue Act of 1926, § 277 (a) (2), 26 USCA § 1057 (a) (2), “The amount of income, excess-profits, and war-profits taxes imposed by the Revenue Act of 1921, and by such Act as amended, for the taxable year 1921 * * * shall be assessed within four years after the return was filed.” By section 200 (1) of the Act of 1921 (42 Stat. 227) the taxable year 1921 included fiscal years ending during 1921. The Board held, three members dissenting, that no lawful return had been filed for the fiscal year in question, and no bar had attached because of section 278 (a) of the Act of 1926 (26 USCA § 1058), “In ease of a false or fraudulent return with intent to evade tax or of a failure to file a return the tax may he assessed *' * * at any time.” The return which will date the beginning of the limitation period, and lack of which will prevent limitation, is one made in substantial conformity to the law which required it. The act of 1918 and that of 1921 in section 239 (40 Stat. 1081, 42 Stat. 259) both require “every corporation «• * * shall make a return, stating specifically the items of its gross income and the deductions and credits allowed by this title. The return shall be sworn to by the president, vice president, or other principal officer and by the treasurer or assistant treasurer.” It is no return as respects limitation if made tentatively and not intended to be the basis of an assessment, Florsheim, Brothers v. United States, 280 U. S. 453, 50 S. Ct. 215, 74 L. Ed. 542; or if not sworn to at all, Lucas v. Pilliod, 281 U. S. 245, 50 S. Ct. 297, 74 L. Ed. 829, 67 A. L. R. 1350. It must purport to cover the entire period involved, and must show the items of" }, { "docid": "21536773", "title": "", "text": "shares of the National City Bank, that there was no profit in fact, or that the dividend was not subject to taxes based upon a valuation of the stock that included the increment. That the market value at the time of distribution should be the basis for the income tax is evident from the decisions of the Supreme Court in United States v. Phellis, 257 U. S. 156, 42 S. Ct. 63, 66 L. Ed. 180, Rockefeller v. United States, 257 U. S. 176, 42 S. Ct. 68, 66 L. Ed. 186, as well as under article 627 of Regulations 74, supra. It is argued on behalf of the petitioner that the value of the City Bank stock, represented by the increase over its cost, is not taxable as a dividend, but should be applied against and reduce the basis of the stock which the taxpayer held in the United Cork Companies, because of the language of section 115 (d) of the Revenue Act of 1928, 26 USCA § 2115 (d). That subdivision reads as follows: “(d) Other Distributions from Capital. If any distribution (not in partial or complete liquidation) made by a corporation to its shareholders is not out of increase in value of property accrued before March 1, 1913, and is not out of earnings or profits, then the amount of such distribution shall be applied against and reduce the basis of the stock provided in section 113 [section 2113], and if in excess of such basis, such excess shall be taxable in the same manner as a gain from the sale or exchange of property. ^ The foregoing subdivision, however, does not exempt distributions made out of earnings or profits of the United Cork Companies. There is no reason to suppose that the earnings and profits were not sufficient to cover the value of the City Bank stock at the time of distribution, and the burden to prove that they were not was upon the taxpayer. Wickwire v. Reinecke, 275 U. S. 101, 48 S. Ct. 43, 72 L. Ed. 184; Metcalf’s Estate v. Commissioner, 32 F.(2d)" }, { "docid": "13400112", "title": "", "text": "finding of the Board upon a record wholly bare; except for the allegations of, the petition, of fáets by which to test the finding, and that, since the burden is upon the taxpayer to establish the illegality of the tax assessed, the correctness of the deduction claimed (Reinecke v. Spalding, 280 U. S. 232, 50 S. Ct. 96, 74 L. Ed. 385), the decision of the Board must be affirmed. Considering, first, the question of waiver, we are not at all impressed with petitioner’s contention that a waiver, executed by the secretary-treasurer, the manager in large part generally, and of the fiscal affairs of the corporation completely, received and acted upon by the government, was not valid and effective to toll the statute. “Taxation, as it many times has been said, is eminently practical.” Tyler v. U. S., 281 U. S. 503, 50 S. Ct. 356, 359, 74 L. Ed. 991, 69 A. L. R. 758. It has to do with matters the great majority of which ought to be, and usually are; disposed of informally, and, where rights are substantially preserved, defects in form may not defeat them. Florsheim Bros. Co. v. U. S., 280 U. S. 453, 50 S. Ct. 215, 74 L. Ed. 542; Stange v. United States, 282 U. S. 270, 51 S. Ct. 145, 75 L. Ed. 335, and courts will not permit a “sticking in the bark” to defeat a waiver voluntarily executed within the scope of the implied powers of him who- executed it, and which was acted upon by the officer of the United States to whom it was addressed. Florsheim Bros. Co. v. U. S., 280 U. S. 453, 50 S. Ct. 215, 74 L. Ed. 542; Stange v. U. S., 282 U. S. 271, 51 S. Ct. 145, 75 L. Ed. 335; Lucas v. Hunt (C. C. A.) 45 F. (2d) 781, for a waiver is not a contract; it is just what its name implies, a waiver voluntarily and unilaterally of a defense by the taxpayer. Aiken v. Burnet, 282 U. S. 277, 51 S. Ct. 148, 75 L." }, { "docid": "1219080", "title": "", "text": "'the government would have collected its taxes without any question arising as to the statute of limitations. Waivers are of quite general use in the adjustment of federal taxes. They need not be given prior to the expiration of the statutory period of limitation or such period as extended by valid waivers, hut at any time with the effect of reviving liability. W. P. Brown & Sons Lumber Co. v. Commissioner of Internal Revenue (C. C. A.) 38 F.(2d) 425; Stange v. United States, 282 U. S. 270, 51 S. Ct. 145, 75 L. Ed. 335; Burnet v. Chicago Ry. Equipment Co., 282 U. S. 295, 51 S. Ct. 137, 75 L. Ed. 349. Their purpose is to give a longer period for the determination of tax liability where the time under the applicable statute of limitations is insufficient. The courts have tried to carry out this purpose, and while holding that the waiver is not a contract, Florsheim Bros. Co. v. United States, 280 U. S. 453, 50 S. Ct. 215, 74 L. Ed. 542; Stange v. United States, 282 U. S. 270, 51 S. Ct. 145, 75 L. Ed. 335, they have in construing waivers considered the intention of the parties as an important factor. The taxpayer waives the time limitation, and while the signature of the Commissioner of Internal Revenue is required only for administrative purposes, Stange v. United States, 282 U. S. 270, 51 S. Ct. 145, 147, 75 L. Ed. 335; Burnet v. Chicago Ry. Equipment Co., 282 U. S. 295, 51 S. Ct. 137, 75 L. Ed. 349, the government under the waiver gives up its present right to collect, and its intention as well as that of the taxpayer is entitled to consideration. Does the term “assessment” as used in these waivers cover determination and collection? Do the waivers apply to assessments which were already made at the time the waiver was given? We think the question of whether the term “assessment” in a waiver covers collection has been settled in a number of cases,, and particularly the late case of Stange v." }, { "docid": "21528234", "title": "", "text": "taxes was extended beyond the statutory period. The agreement was signed by the plaintiff and returned to the Commissioner, who acknowledged its receipt and stated that it was on file in his office. From time to time similar written agreements were transmitted by the Commissioner to the plaintiff, signed by the plaintiff, and returned to the Commissioner, extending the time for assessment and collection to December 31, 1907. Although no one of the agreements was signed by the Commissioner of Internal Revenue in person, all of them were signed in his name, were on file in his office; and were relied upon by him in acting upon the plaintiff’s protests. The letters to the plaintiff with reference to the extension agreements went out in the regular course of business and were signed in the name of the assistant to the Commissioner. The, cited statute requires only that the Commissioner and the taxpayer consent in writing to the later, determination, assessment,' and collection. It does not require that the consent, in order to be-valid, be in one instrument- or in any particular form. In the instant case, the consent by the Commissioner is found in the letters which- were sent out from his office.-. Contentions against the validity of agreements of extension, because of the lack of the Commissioner’s signature, were unsuccessfully made in this court in Liberty Baking Co. v. Heiner, 37 F.(2d) 703. See, also, Trustees for Ohio & Big Sandy Coal Co. v. Commissioner, 43 F.(2d) 782 (C. C. A. 4); Sabin v. United States, 44 F.(2d) 70 (Ct. Cl.); Stern Bros. & Co. v. Burnet, 51 F.(2d) 1042 (C. C. A. 8). In Stange v. United States, 282 U. S. 270, 276, 51 S. Ct. 145, 147, 75 L. Ed. 335, the court said: “As pointed out in Florsheim Bros., etc., v. United States, 280 U. S. 453, 466, 50 S. Ct. 215, 74 L. Ed. 542, a waiver is not a contract, and the provision requiring the Commissioner’s signature was inserted for purely administrative purposes and not to convert into a contract what is essentially a" }, { "docid": "7840559", "title": "", "text": "In Stange v. United States, 282 U. S. 270, 51 S. Ct. 145, 75 L. Ed. 335, it was held that a waiver is operative, even though given after the period of limitation has expired, and this on analogy to the rule that private debts barred by the statute of limitations may be effectively revived after the bar has fallen by a new promise without new consideration (citing’ Williston, Contracts, §§ 160 to 184), and also upon-the assumption that an effective and not a futile act was intended. See, also, Aiken v. Burnet, 282 U. S. 277, 51 S. Ct. 148, 75 L. Ed. 339; Burnet v. Chicago Railway Equipment Co., 282 U. S. 295, 51 S. Ct. 137, 75 L. Ed. 349, and Florsheim Bros. Drygoods Co. v. United States, 280 U. S. 453, 466, 50 S. Ct. 215, 74 L. Ed. 542. But, whether we consider the bond as a waiver or as a substituted contract, the result, so far as the taxpayer here is concerned, is the same. Some further consideration should perhaps be given to the argument that a payment which can he recovered back is not payment of a debt, and that the bond therefore can be given no greater effect as a defense than actual payment. The statement, however, that the tax, if paid, could have been recovered, is only qualifiedly true. In the hypothetical case suggested the payment could have been recovered only if the taxpayer could have expeditiously pursued his administrative remedy, have promptly thereafter sued for recovery, and have obtained judgment before the effective date of the 1928 act. Failing in this, a claim for abatement having been filed, the collection would-have come within the ambit of section 611 of the 1928 act, and recovery would -have been barred. It is, of course, idle to speculate upon what might have been done, but 'which in fact was not done, yet it is not without interest to note that in Graham & Foster v. Goodcell, supra, wherein sections 607 and 611, supra, were construed, parents were made in November and December, 1924," }, { "docid": "5565836", "title": "", "text": "taxpayer/ as stated in Stange v. United States, 282 U. S. 270, 276, 51 S. Ct. 145, 75 L. Ed. 335; also see Florsheim Bros. Drygoods Co. v. U. S., 280 U. S. 453, 466, 50 S. Ct. 215, 74 L. Ed. 542; that the signature by the Commissioner is a statutory requirement made, not for contract purposes, but ‘to meet exigencies of administration/ as said in Aiken v. Burnet, 282 U. S. 277, 281, 51 S. Ct. 148, 75 L. Ed. 339; also see Stange v. United States, 282 U. S. 270, 276, 51 S. Ct. 145, 75 L. Ed. 335; Burnet v. [Chicago] Railway Equipment Co., 282 U. S. 295, 298, 51 S. Ct. 137, 75 L. Ed. 349; Elorsheim Bros. Co. v. U. S., 280 U. S. 453, 466, 50 S. Ct. 215, 74 L. Ed. 542; Greylock Mills v. Commissioner, 31 F.(2d) 655, 657 (C. C. A. 2); and where the taxpayer, by the execution of the waiver, has obtained delay in the assessment of additional taxes, and a more deliberate and thorough consideration of the questions involved, and where the waiver is regular in form and in the possession of the proper governmental bureau, every presumption should be taken in favor of its validity and binding effect, and the burden is upon the taxpayer to show such invalidity or ineffectiveness, see Trustees for Ohio & Big Sandy Coal Co. v. Commissioner, 43 F.(2d) 782, 784 (C. C. A. 4).” Where a waiver of this character bears a purported signature of the Commissioner, and comes from the files of his office, the presumption is that it has been properly executed, and the burden is upon the taxpayer to prove otherwise, and is not upon the Commissioner to prove the verity or authority of his signature. That burden on the taxpayer has not been here sustained. As to the sufficiency of the signature of the taxpayer: There is no -question that the secretary of the taxpayer executed the above signature and affixed to the waiver the corporate seal of petitioner. From the record it is obvious that" }, { "docid": "11907051", "title": "", "text": "of the 288 shares would not be over $25.00 or $30.00 per share. It is contended by counsel for appellant that the Board erred in refusing to accept the uneontradicted evidence of these witnesses as conclusive of the issues involved in this case. We agree with the Board, however, that the testimony of these witnesses is not uneontradicted. On tho contrary, it is met by the tax return of appellant company in 1928, placing a trading value on this stock of $117 per share; met by the earning capacity of this stock during the years immediately prior to and including 1928; met by the fact that none of this stock had been sold in 28 years; and also met by the fact that no evidence was adduced showing the value of tho assets and good will of the corporation as bearing upon the value of the stock. These were proper facts and elements to be considered by the Board in determining the fair market value of the stock. The burden rested upon appellant company to overcome by competent and sufficient evidence the valuation fixed by the Commissioner. Botany Worsted Mills v. United States, 278 U. S. 283, 49 S. Ct. 129, 73 L. Ed. 379. The valuation of $117 per share, as fixed by the Commissioner and approved by the Board, must be regarded as prima facie correct until overcome by substantial evidence. Wickwire v. Reinecke, 275 U. S. 101, 48 S. Ct. 43, 72 L. Ed. 184; United States v. Mitchell, 271 U. S. 91, 46 S. Ct. 418, 70 It. Ed. 799; United States v. Anderson, 269 U. S. 422, 48 S. Ct. 131, 70 L. Ed. 347. There are two recognized methods of ascertaining “market value.” The price may be established in the ease of corporate stocks by showing the standardized price which it has in a market whore it is dealt in by many persons, and in a large number of transactions. A different rule, however, must he applied where, as in the present case, no stock had been sold for a period of twenty-eight year’s," }, { "docid": "1219079", "title": "", "text": "of the 1921 Act ran through the Revenue Acts of 1924 and 1926 (43 Stat. 253; 44 Stat. 9). It is'reasonably clear that the limitation on collection as to the assessments here would be governed by provisions of section 250 (d) of the 1921 Act, and the limitation would commence to run from the date the returns were filed. The provision of 278 (d) of the 1924 Revenue Act that the period of limitation on collection is to run from the date of assessment is excluded by section 278 (e) from application to assessments made prior to June 2, 1924, and as to such the limitation continues to run from the date the return was filed. Russell et al. v. United States, 278 U. S. 181, 49 S. Ct. 121, 73.L. Ed. 255. (3-5] The importance of \"the waivers as to this branch of the government’s defense is evident. Without them the time limitation of section 250 (d) for collection would have passed prior to payment. It is probable that had there been no waivers 'the government would have collected its taxes without any question arising as to the statute of limitations. Waivers are of quite general use in the adjustment of federal taxes. They need not be given prior to the expiration of the statutory period of limitation or such period as extended by valid waivers, hut at any time with the effect of reviving liability. W. P. Brown & Sons Lumber Co. v. Commissioner of Internal Revenue (C. C. A.) 38 F.(2d) 425; Stange v. United States, 282 U. S. 270, 51 S. Ct. 145, 75 L. Ed. 335; Burnet v. Chicago Ry. Equipment Co., 282 U. S. 295, 51 S. Ct. 137, 75 L. Ed. 349. Their purpose is to give a longer period for the determination of tax liability where the time under the applicable statute of limitations is insufficient. The courts have tried to carry out this purpose, and while holding that the waiver is not a contract, Florsheim Bros. Co. v. United States, 280 U. S. 453, 50 S. Ct. 215, 74 L. Ed." }, { "docid": "5910325", "title": "", "text": "is not shown. In November, 1918, petitioner’s capital stock was increased to $75,000 by the capitalization of surplus and a stock dividend of 1,400 per cent. The balance sheets of petitioner showed items as follows: August 31, 1916: Capital stock, $5,000; eash, $3,167.27; surplus, $46,177.55. August 31, 1917: Capital stock, $5,000; cash, $18,169.90.; surplus, $63,413.54; August 31, 1918: Capital stock, $75,000; eash, $29,303.82; surplus, $12,391.37. In determining the deficiencies the commissioner held that petitioner owned a one-half interest in the Altsehul Farm. The board disagreed with this finding, but held that as petitioner had a large surplus in 1917, which served the same purpose of capital assets, petitioner had more than a nominal capital and was not entitled to have its taxes computed under the provisions of section 209 of the Revenue Act of Oct. 3, 1917 (40 Stat. 307). The board further held that for the period from January 1, 1918, to August 31, 1918, petitioner could not be classed as a personal service corporation under the provisions of section 200 and 231 of the Revenue Act of 1918 as 60 per cent, of the stock was held by the estate of Oscar Altsehul, which could not contribute any personal services to which income could be ascribed primarily. See 16 B. T. A. 1202. It' is immaterial whether the commissioner proceeded upon the wrong theory in determining the deficiencies. In any event the burden was on petitioner to show that the assessment was wrong. Reinecke v. Spalding, 280 U. S. 227, 50 S. Ct. 96, 74 L. Ed. 385. There is no explanation as to what entered into the surplus except an allegation in the petition to the board that it consisted of assets of such a nature that they could not be distributed. This is rather contradicted by the showing of a large amount of cash on hand which entered into the' surplus. The presumption may be indulged that if it were not useful in the business it would have been distributed to the stockholders. The petitioner was in effect carrying on a manufacturing business as well as" }, { "docid": "10892283", "title": "", "text": "PHILLIPS, Circuit Judge. The petitioner-earnestly contends that he did not receive stock which had a “fair market value” for the reason that he eould not sell such stock to any one in 1920 without violating his contract with King and Wood. There is a heavy burden on the taxpayer “of proving that the Commissioner’s action was plainly arbitrary.” Lucas v. Kansas City Structural Steel Co. (April 14, 1930) 281 U. S. 264, 50 S. Ct. 263, 266, 74 L. Ed. 848. See, also, Lucas v. American Code Co., 280 U. S. 445, 50 S. Ct. 202, 74 L. Ed. 538, and Williamsport Wire Rope Co. v. United States, 277 U. S. 551, 48 S. Ct. 587, 72 L. Ed. 985. Petitioner received stock in exchange for property which had a ready market value. Under petitioner’s contract with .King and Wood, he was free, in accordance with a now common practice, to sell and deliver certificates of beneficial ownership in such stock, retaining the legal title to such stock and the voting rights thereunder. Petitioner wholly failed to establish that such certificates of beneficial ownership did not have a ready market value equal to the value which the Commissioner placed upon the property received by the petitioner in such exchange. Therefore, assuming without admitting the correctness of petitioner’s contention as to his inability to sell and transfer the legal title to such stock in 1920, it still follows that petitioner failed to- carry the burden which rested upon him. Taxation is an intensely practical matter. Income taxes are levied upon the basis of an annual accounting period. Rates are based upon the needs of the government for revenue and are continually changing. Annual accounting periods must be adhered to and arbitrary shifting of income from one year to another must be prevented in order to enable Congress to successfully, adjust the rates to the need's of the Government. These have become fixed requirements in federal revenue taxation. We are of the opinion that a taxpayer cannot legally avoid such requirements by the simple expedient of an agreement with friends or associates" }, { "docid": "11907052", "title": "", "text": "overcome by competent and sufficient evidence the valuation fixed by the Commissioner. Botany Worsted Mills v. United States, 278 U. S. 283, 49 S. Ct. 129, 73 L. Ed. 379. The valuation of $117 per share, as fixed by the Commissioner and approved by the Board, must be regarded as prima facie correct until overcome by substantial evidence. Wickwire v. Reinecke, 275 U. S. 101, 48 S. Ct. 43, 72 L. Ed. 184; United States v. Mitchell, 271 U. S. 91, 46 S. Ct. 418, 70 It. Ed. 799; United States v. Anderson, 269 U. S. 422, 48 S. Ct. 131, 70 L. Ed. 347. There are two recognized methods of ascertaining “market value.” The price may be established in the ease of corporate stocks by showing the standardized price which it has in a market whore it is dealt in by many persons, and in a large number of transactions. A different rule, however, must he applied where, as in the present case, no stock had been sold for a period of twenty-eight year’s, and there is no method afforded of establishing its standardized price in any market where the stock has been sold. In these circumstances it is competent to treat the subject in a figurative sense to determine the fair or reasonable value the stock would have if it were placed upon the general market. To establish “market value” in tho figurative sense, evidence of individual transactions, the earning capacity o-f the stock, the location of the corporation, the annual output of the corporation, its value, tho uses to which the product of the corporation can be put, and any other elements, are admissible to show the fair and reasonable value of stock which has not been on tho market in such manner as to give it a market value in the primary sense of the term. North American Telegraph Co. v. Northern Pacific Ry. Co. (C. C. A.) 254 F. 417. In the ease of Virginia v. West Virginia, 238 U. S. 202-, 35 S. Ct. 795, 800, 59 L. Ed. 1272, the court had under" }, { "docid": "7840558", "title": "", "text": "undertook to do that by section 1106 (a) of the Revenue Act of 1926 (26 USCA § 1249, note), printed in the margin, but repealed the section as of the date of its enactment by section 612 of the Revenue Act of 1928 (45 Stat. 875). The necessary implication from both the enactment and repeal of section 1106 (a), in spite of some apparent dicta contra, is that the period of limitation neither in aets prior to nor subsequent to the act of 1926 extinguished the tax debt, however it may have barred collection or warranted recovery by the taxpayer as an overpayment. But, aside from the contractual obligation created by the bond, we think the bond constituted a waiver of the period of limitation, not, perhaps, the express or technical waiver provided for by the-so-called consent clause (section 250 (d), of the 1921 act, but at least an implied waiver. In the Barth Case it was held that a bond given to stay collection prior to the running of the statute is a waiver. In Stange v. United States, 282 U. S. 270, 51 S. Ct. 145, 75 L. Ed. 335, it was held that a waiver is operative, even though given after the period of limitation has expired, and this on analogy to the rule that private debts barred by the statute of limitations may be effectively revived after the bar has fallen by a new promise without new consideration (citing’ Williston, Contracts, §§ 160 to 184), and also upon-the assumption that an effective and not a futile act was intended. See, also, Aiken v. Burnet, 282 U. S. 277, 51 S. Ct. 148, 75 L. Ed. 339; Burnet v. Chicago Railway Equipment Co., 282 U. S. 295, 51 S. Ct. 137, 75 L. Ed. 349, and Florsheim Bros. Drygoods Co. v. United States, 280 U. S. 453, 466, 50 S. Ct. 215, 74 L. Ed. 542. But, whether we consider the bond as a waiver or as a substituted contract, the result, so far as the taxpayer here is concerned, is the same. Some further consideration should" }, { "docid": "7606606", "title": "", "text": "1920 was $59,908.-65. Of this amount $35,192.03 was on account of commissions of loans and sales and $2,548.90 represented the net interest receipts. During the year 1921 the gross income was $52,122.86. Its loan commissions amounted to $28,532.78 and its net interest income to $1,198.49. Upon the evidence appellant’s capital was a material income producing factor in the business carried on. There was evidence sustaining the findings of the Board of Tax Appeals and/ its decision was fully justified. Feeders’ Supply Co. v. Commissioner of Internal Revenue (C. C. A.) 31 F.(2d) 274; Conklin-Zonne-Loomis Co. v. Commissioner of Internal Revenue (C. C. A.) 29 F.(2d) 698; Denver Live Stock Commission Co. v. Commissioner of Internal Revenue (C. C. A.) 29 F.(2d) 543; Hubbard-Ragsdale Co. v. Dean (D. C.) 15 F.(2d) 410, affirmed by Circuit Court of Appeals, Sixth Circuit, in 15 F.(2d) 1013. Moreover, this being a claim for exemption or a privilege granted by the government, the statute must be construed in favor of the government, even if in doubt, which we do not concede. Cornell v. Coyne, 192 U. S. 418, loc. cit. 431, 24 S. Ct. 383, 48 L. Ed. 504. To establish such exemption by evidence, the burden was upon the appellant. Reinecke v. Spalding, 280 U. S. 227, 50 S. Ct. 96, 74 L. Ed. -; Botany Worsted Mills v. United States, 278 U. S. 282, loc. cit. 289 and 290, 49 S. Ct. 129, 73 L. Ed. 379; Feeders’ Supply. Co. v. Commissioner of Internal Revenue, supra. The appellant has not carried this burden, but on the contrary the evidence showed, as found by the Board of Tax Appeals, that appellant’s capital was a material income producing factor.- Accordingly, the action and decision of the Board of Tax Appeals should be affirmed." }, { "docid": "13400113", "title": "", "text": "informally, and, where rights are substantially preserved, defects in form may not defeat them. Florsheim Bros. Co. v. U. S., 280 U. S. 453, 50 S. Ct. 215, 74 L. Ed. 542; Stange v. United States, 282 U. S. 270, 51 S. Ct. 145, 75 L. Ed. 335, and courts will not permit a “sticking in the bark” to defeat a waiver voluntarily executed within the scope of the implied powers of him who- executed it, and which was acted upon by the officer of the United States to whom it was addressed. Florsheim Bros. Co. v. U. S., 280 U. S. 453, 50 S. Ct. 215, 74 L. Ed. 542; Stange v. U. S., 282 U. S. 271, 51 S. Ct. 145, 75 L. Ed. 335; Lucas v. Hunt (C. C. A.) 45 F. (2d) 781, for a waiver is not a contract; it is just what its name implies, a waiver voluntarily and unilaterally of a defense by the taxpayer. Aiken v. Burnet, 282 U. S. 277, 51 S. Ct. 148, 75 L. Ed. 339; Brown v. Burnet, 282 U. S. 283, 51 S. Ct. 140, 75 L. Ed. 343; Burnet v. Railway Equipment Co., 282 U. S. 295, 51 S. Ct. 137, 75 L. Ed. 349. Here the holding out by tbe corporation of Farley as secretary-treasurer as having authority to execute the waiver is emphasized by the fact that the return, which was the basis of the deficiency assessment, was without specific authority,- made by him. It is certainly not reasonable nor consistent to on tbe one hand contend that Farley had authority to file the return sufficient to avoid the penalties for failure to file, and yet, nothing different ap^ pearing, that he did not have the power to sign a waiver of assessment with regard to that same return, which, as the act of the corporation, he had made and filed. Besides, we think the primary facts found by the Board support the ultimate finding that Farley was authorized to execute the waiver for the corporation, whether under the Louisiana statutes he be regarded" }, { "docid": "5565835", "title": "", "text": "name to this document; seeond, that the other signature is “Concrete Engineering Company, by A. P. Jessen, See’y-Treas., Taxpayer,” and that, under the laws of Nebraska, the secretary of a corporation is not authorized to bind the corporation in the absence of specific authority. In Stem Brothers & Co. v. Burnet, 51 F. (2d) 1042, 1046, a similar contention was made regarding a waiver signed “D. H. Blair, Commissioner, M. B.,” and this court said: “The contention as to the proper signature is met by the waiver itself, which eon tains the signature ‘D. H. Blair, Commissioner/ and the presumption of the verity of the acts of public' officials. United Thacker Coal Co. v. Commissioner, 46 F. (2d) 231, 233 (C. C. A. 1); Trustees for Ohio & Big Sandy Coal Co. v. Commissioner, 43 F.(2d) 782, 784 (C. C. A. 4). “In general, it may be said as to this controversy and those of a related character that a waiver of this kind is ‘essentially a voluntary, unilateral waiver of a defense by the taxpayer/ as stated in Stange v. United States, 282 U. S. 270, 276, 51 S. Ct. 145, 75 L. Ed. 335; also see Florsheim Bros. Drygoods Co. v. U. S., 280 U. S. 453, 466, 50 S. Ct. 215, 74 L. Ed. 542; that the signature by the Commissioner is a statutory requirement made, not for contract purposes, but ‘to meet exigencies of administration/ as said in Aiken v. Burnet, 282 U. S. 277, 281, 51 S. Ct. 148, 75 L. Ed. 339; also see Stange v. United States, 282 U. S. 270, 276, 51 S. Ct. 145, 75 L. Ed. 335; Burnet v. [Chicago] Railway Equipment Co., 282 U. S. 295, 298, 51 S. Ct. 137, 75 L. Ed. 349; Elorsheim Bros. Co. v. U. S., 280 U. S. 453, 466, 50 S. Ct. 215, 74 L. Ed. 542; Greylock Mills v. Commissioner, 31 F.(2d) 655, 657 (C. C. A. 2); and where the taxpayer, by the execution of the waiver, has obtained delay in the assessment of additional taxes, and a more deliberate" }, { "docid": "21528235", "title": "", "text": "one instrument- or in any particular form. In the instant case, the consent by the Commissioner is found in the letters which- were sent out from his office.-. Contentions against the validity of agreements of extension, because of the lack of the Commissioner’s signature, were unsuccessfully made in this court in Liberty Baking Co. v. Heiner, 37 F.(2d) 703. See, also, Trustees for Ohio & Big Sandy Coal Co. v. Commissioner, 43 F.(2d) 782 (C. C. A. 4); Sabin v. United States, 44 F.(2d) 70 (Ct. Cl.); Stern Bros. & Co. v. Burnet, 51 F.(2d) 1042 (C. C. A. 8). In Stange v. United States, 282 U. S. 270, 276, 51 S. Ct. 145, 147, 75 L. Ed. 335, the court said: “As pointed out in Florsheim Bros., etc., v. United States, 280 U. S. 453, 466, 50 S. Ct. 215, 74 L. Ed. 542, a waiver is not a contract, and the provision requiring the Commissioner’s signature was inserted for purely administrative purposes and not to convert into a contract what is essentially a voluntary, unilateral waiver of a defense by the taxpayer.” We find no error in the conclusion of the District Court that the additional assessments for 1918 and 1920 were made within the proper statutory period as extended by the waivers. Amortization. One of the contentions upon which the plaintiff relies in support of its claim for refund is based upon the Commissionei*’s treatment of its claims under section 234 (a) (8) of the Revenue Act of 1918 (40 Stat. 1077). In order to reimburse those who had incurred capital expenditures in their business for war purposes, that .act provides: “In the case of buildings, machinery, equipment, or other facilities, constructed, erected, installed, or acquired, on or after April 6, 1917, for the production of articles contributing to the prosecution of the present war, * * * there shall be allowed a reasonable deduction for the amortization of such part of the cost of such facilities * * * as has been borne by the taxpayer, but not again including any amount otherwise allowed under this" }, { "docid": "11961879", "title": "", "text": "of the company and 425 shares of its preferred stock on the New York Curb Exchange when it was loosely organized was not too meager to require submission to a jury of the question of value. In Penney & Long, Inc., v. Commissioner, 39 F.(2d) 849 (C. C. A. 4), the court reversed the action of the Board of Tax Appeals, basing its reversal upon the ground that the taxpayer sustained the burden before the Board of overturning the finding of the Commissioner by showing -that stock was sold in a comparatively large quantity at par, even though it was sold largely to friends and relatives of the incorporators of the petitioner company. These decisions in principle support the present holding. At the hearing before the Board of Tax Appeals the burden was on the taxpayer to prove that the value placed on this'stock by the Commissioner was incorrect. Botany Worsted Mills v. United States, 278 U. S. 282, 49 S. Ct. 129, 73 L. Ed. 379; Wickwire v. Reinecke, 275 U. S. 101, 48 S. Ct. 43, 72 L. Ed. 184; United States v. Anderson, 269 U. S. 422, 46 S. Ct. 131, 70 L. Ed. 347; United States v. Mitchell, 271 U. S. 9, 46 S. Ct. 418, 70 L. Ed. 799; Austin Co. v. Commissioner, 35 F.(2d) 910 (C. C. A. 6); Louisville Cooperage Co. v. Commissioner, 47 F.(2d) 599 (C. C. A. 6); Avery v. Commissioner, 22 F.(2d) 6, 55 A. L. R. 1277 (C. C. A. 5); Brown v. Commissioner, 22 F.(2d) 797 (C. C. A. 5); Bishoff v. Commissioner, 27 F.(2d) 91 (C. C. A. 3). Here the respondents did not sustain the burden. The orders and decisions of the Board of Tax Appeals are reversed, and the causes are remanded for further proceedings." }, { "docid": "6908829", "title": "", "text": "agents was notice to the principal (Jefferson County National Bank v. Dewey et al., 197 N. Y. 14, 90 N. E. 113; Armstrong v. Ashley, 204 U. S. 272, 27 S. Ct. 270, 51 L. Ed. 482; Smith et al. v. Ayer et al., 101 U. S. 320, 25 L. Ed. 955); and the signing of these waivers by Jaffee was not only thus acquiesced in [see U. S. v. Kemp (C. C. A.) 12 F.(2d) 7] by the board of directors through its agents, hut the agents actually participated in the execution of which his signing was a part. The waivers are as valid as though executed by the board of directors. The petitioner claims, however, that, as the last two waivers, as distinguished from the first which extend the time both for assessment and collection, extended the time for assessment only, the time limited for collection has expired. These waivers were received at the Treasury Department December 31, 1925, and signed by the Commissioner. At that time the Revenue Act of 1924 was in effect; no assessment had been made; the statutory period for assessment of the earlier taxes, as extended by the waiver, had not expired; and the time for assessment of the later taxes, unoxtendod by waiver, had not expired. The waivers extended the- time for assessment to December 31, 1926. Assessment was made in April, 1926. The government accordingly had six years from that date in which to collect. Revenue Act of 3924, e. 234, § 278(d), 43 Stat. 299 (26 US CA § 1061 note); Revenue Act of 1926, c. 27, § 278(d), 44 Stat. 59 (26 USCA § 1061); Revenue Act of 1928, c. 852, § 506(a), 45 Stat. 870 (26 USCA § 1061); Florsheim Bros. Co. v. U. S., 280 U. S. 453, 50 S. Ct. 215, 74 L. Ed. 542. In Joy Floral Co. v. Commissioner, 58 App. D. C. 277, 29 F.(2d) 865, it was held that a waiver executed after the statutory period had run would not serve, but here the waivers were executed before the statutory period, in" }, { "docid": "13486630", "title": "", "text": "and therefore too late to form the basis of a reassessment, shows that additional amounts in excess of the overpayments were justly due, the claim of the taxpayer will be denied. Lewis v. Reynolds, 284 U. S. 282, 52 S. Ct. 145, 76 L. Ed. 293. “Taxation, as it has been many times said, is.an eminently practical matter.” Tyler v. U. S., 281 U. S. 497, 50 S. Ct. 356, 74 L. Ed. 991, 69 A. L. R. 758. It has to do with matters, the great majority of which ought to be and usually are, disposed of informally, and where rights have been substantially preserved proceedings will not be defeated by defects in form. Independent I. & C. Storage Co. v. Commissioner (C. C. A.) 50 F.(2d) 31. Especially is it true that, where the government and the taxpayer, by acquiescence in the manner of performing an act, have given a definite character and effect to it, the taxpayer will not be permitted, after deriving benefits from this acquiescence, to deny this character and effect to it, or to change his position at the government’s expense. Magee v. U. S., 282 U. S. 432, 51 S. Ct. 195, 75 L. Ed. 442; Independent I. & C. Storage Co. v. Commissioner, supra; Lucas v. Hunt (C. C. A.) 45 F.(2d) 781; Florsheim Bros. Drygoods Co. v. U. S., 280 U. S. 453, 50 S. Ct. 215, 74 L. Ed. 542; Stange v. U. S., 282 U. S. 271, 51 S. Ct. 145, 75 L. Ed. 335; Liberty Baking Co. v. Heiner (D. C.) 37 F.(2d) 703; Pittsburgh Terminal Coal Corp. v. Heiner (D. C.) 56 F.(2d) 1072. Estoppel, however, aside, we think it plain that in substance plaintiff has not made out a ease. Its payments, within the spirit and intent, indeed within the very letter, of section 611, are not overpayments. Here are assessments actually made before June 2, 1924, within the period of limitation applicable, claims in abatement actually filed, collection of taxes actually stayed, abatement of part of the assessments actually made,- taxes as abated actually paid" } ]

[ { "docid": "22770856", "title": "", "text": "Balasubramanrim did not look at him while testifying and instead stared straight ahead ‘as though in a trance.’ ” Id. The BIA affirmed the immigration judge’s decision because of perceived inconsistencies between Balasubramanrim’s testimony at the hearing and his airport statement. However, we concluded that Balasubra-manrim’s airport interview did not necessarily accurately reflect the persecution that he suffered in Sri Lanka, nor the danger he would face if he were forced to return. We expressed concern that: (1) the handwritten record of the airport interview may npt be reliable since “[w]e [did] not know how the interview was conducted or how the document was prepared”; (2) the airport statement was not an application for asylum; (3) an arriving alien may, because of past interrogation, be unwilling to disclose much information to government officials; and (4) the BIA may not have accurately assessed Bala-subramanrim’s English skills. Id. at 162-63. We thus concluded that any discrepancy between Balasubramanrim’s airport statement and his testimony was insufficient, by itself, to support the BIA’s finding that the petitioner was not credible. Id. at 164 (citing Aguilera-Cota, 914 F.2d at 1382). We recognized that the BIA did not pursue Bala-subramanrim’s asylum and withholding of deportation claims because of its adverse credibility finding. However, “ ‘[i]n the absence of substantial evidence supporting a finding of adverse credibility, the BIA is required explicitly to consider a petitioner’s claims for asylum and withholding of deportation.’ ” Id. at 165 (quoting Mosa, 89 F.3d at 605). We therefore granted Balasubramanrim’s petition and remanded the case to the BIA with further instruction to remand to the immigration judge for a determination of Ba-lasubramanrim’s asylum and withholding of deportation claims “without reliance on the adverse credibility finding.” Id. Specifically, we held that “because of ambiguities in the airport statement and the circumstances under which it was made, that statement does not provide sufficient evidence to support the adverse credibility determinations upon which the immigration judge and BIA denied the petition.” Id. Here, as in Balasubramamim, the immigration judge and the BIA gave far too much weight to the affidavit taken during Senathi-rajah’s" } ]

[ { "docid": "22881309", "title": "", "text": "accurate record of the alien’s statements,” having observed that “[t]he airport interview is an inherently limited forum for the alien to express the fear that will provide the basis for his or her asylum claim.” 357 F.3d at 179. As we explained: The interview takes place immediately after an alien has arrived in the United States, often after weeks of travel, and may be perceived by the alien as coercive or threatening, depending on the alien’s past experiences. Moreover, at the interview, the alien is not represented by counsel, and may be completely unfamiliar with United States immigration laws and the elements necessary to demonstrate eligibility for asylum. Finally, because those most in need of asylum may be the most wary of governmental authorities, the BIA and reviewing court must recognize, in evaluating the statements made in an interview, that an alien may not be entirely forthcoming in the initial interview. Id. We thereafter provided a non-exhaustive list of factors that the BIA should use to evaluate whether an airport interview can be considered reliable. Id. at 179-80 (relying on Balasubramanrim v. INS, 143 F.3d 157 (3d Cir.1998) and Senathirajah v. INS, 157 F.3d 210 (3d Cir.1998)). We further explained that the BIA, upon determining that an airport interview is sufficiently reliable, should accord weight to any discrepancies between the airport interview and later statements “in light of the relatively superficial nature of the airport interview.” Id. at 180. Where, however, the concerns identified in Ramsameachire do not apply ■ to the same degree, we have recognized that the BIA and reviewing courts need not engage in “special scrutiny” of an interview record. See Diallo v. Gonzales, 445 F.3d 624, 632 (2d Cir.2006) (“[I]n light of the differences between asylum interview[s] and airport interviews, ... asylum interview[s] ... do not call for special scrutiny, as airport interviews do.”). For example, in Diallo, we noted that, in contrast with airport interviews, asylum interviews “take place after the alien has arrived in the United States, has taken the time to submit a formal asylum application, and has had the opportunity to gather" }, { "docid": "22668971", "title": "", "text": "Lanka. The IJ concluded that Ram-sameachire’s lack of credibility therefore precluded relief under both the INA and CAT. The BIA affirmed the IJ’s decision, including the credibility determination. Ramsameachire now challenges the basis for the BIA’s adverse credibility finding, arguing that his airport statement cannot provide the sole basis for discounting his hearing testimony. He also argues that even if the credibility determination was correct, the BIA and IJ should not have relied upon it in rejecting his alternative basis for fearing persecution, that Tamils as a group are subject to a pattern or practice of persecution. Finally, he challenges the rejection of his CAT claim, asserting that the BIA and IJ were required to consider his proffered evidence of the conditions in Sri Lanka before concluding that he was not entitled to withholding of removal pursuant to CAT. We hold that (1) although airport statements can, in some circumstances, be unreliable, the BIA was entitled to consider Ramsameachire’s airport interview statements in making its credibility determination, because the airport interview was carefully conducted with the assistance of a Tamil interpreter and because it is clear that Ramsameaehire understood the nature of the proceedings; (2) the BIA’s determination that Ramsameachire’s testimony was not credible, and its consequent conclusion that he had not established his eligibility for asylum, are supported by substantial evidence; (3) the BIA’s finding that Ramsameaehire was not credible also precluded holding that he was entitled to asylum based on a pattern or practice of persecution; (4) the BIA’s determination that Ramsameaehire failed to establish his entitlement to withholding of removal pursuant to 8 U.S.C. § 1231(b)(3)(A) is supported by substantial evidence; and (5) the BIA’s failure to consider Ramsamea-ehire’s evidence of country conditions before rejecting his CAT claim violated CAT’s implementing regulations. We therefore affirm the BIA’s rejection of Ramsameachire’s claims for asylum and withholding of removal under the INA, and vacate and remand its decision on his CAT claim. BACKGROUND Ramsameaehire is a native and citizen of Sri Lanka, and a member of its ethnic Tamil minority, which comprises roughly eighteen percent of Sri Lanka’s population." }, { "docid": "22668991", "title": "", "text": "application and hearing testimony may simply reflect the fact that the alien has had the chance to parse his or her experience more carefully or refresh his or her recollection after the initial interview. Immaterial inconsistencies need not be construed as an attempt to massage the alien’s statements into a more viable claim. Where the alien’s airport statements and his or her later testimony present materially different accounts of his or her purported persecution, however, the inconsistencies may render the alien’s testimony incredible. Thus, the manner in which the interview was conducted and the alien’s circumstances and demeanor will determine whether the interview should be taken into account in assessing the alien’s credibility, and the nature of the inconsistencies themselves will decide whether the alien’s airport statements render his or her subsequent testimony incredible. Here, the BIA properly considered the dangers inherent in airport interviews and reasonably concluded that Ramsameachire’s interview was conducted in such a manner as to ensure that it provides a reliable source of his statements. The agency noted that, given “the limitations inherent to the airport interview process, which are largely caused by a lack of time and resources,” it must always “be cautious when contrasting an alien’s airport statement to his written asylum application and oral testimony,” but found that Ramsameachire’s interview was reliable enough to use as a source of his prior statements about his asylum claim. This conclusion is supported by substantial evidence. Ramsameachire’s airport interview was conducted in a non-coercive and careful manner. At the beginning of the interview, the INS officer explained to Ramsameachire that “U.S. law provides protection to certain persons who face persecution ... upon return to their home country. If you fear ... being removed from the United States or ... being sent home, you should tell me so during this interview because you may not have another chance.” The interview did not proceed until Ramsameachire indicated that he understood the officer’s statement and his rights under United States law. Moreover, Ramsameachire was provided with a Tamil interpreter, and was specifically asked if he could understand him or" }, { "docid": "22858872", "title": "", "text": "official questioning, particularly if the alien has indeed been subject to government abuse in her country of origin. See Balasubramanrim v. INS, 143 F.3d 157, 163 (3d Cir.1998) (explaining that “an arriving alien who has suffered abuse during interrogation sessions by government officials in his home country may be reluctant to reveal such information during the first meeting with government officials in this country”). See also Ramsameachire, 357 F.3d at 180 (finding that an interview can be less reliable if it appears that the alien is reluctant to reveal information due to coercive experiences in her or her country of origin); Balogun v. Ashcroft, 374 F.3d 492, 504 (7th Cir.2004) (noting that “if there are language barriers or if the applicant has a reasonable fear of governmental authority (perhaps because the applicant recently has been subjected to governmental abuse or coercion), then evasive answers on the question of fear of persecution would not be a reliable indicator of a true lack of fear”). Thus, if an alien’s statements during an airport interview are less detailed than the alien’s later testimony, the IJ should not focus exclusively on airport interview omissions, rather than contradictions, when determining whether the alien is credible. The Seventh Circuit has concluded that “airport interviews are not always reliable indicators of credibility” subsequent to the passage of the REAL ID Act. Moab v. Gonzales, 500 F.3d 656, 660 (7th Cir.2007) (alterations and citation omitted). As the Second Circuit has held, “because those most in need of asylum may be the most wary of governmental authorities, the BIA and reviewing court must recognize, in evaluating statements made in an interview, that an alien may not be entirely forthcoming in the initial interview.” Ramsameachire, 357 F.3d at 179. Although the IJ took issue with Tang’s characterization of her childhood as without religion, since she attended government-sponsored Catholic church with her grandmother, Tang easily explained this inconsistency by clarifying that she did not consider herself to have had a religion prior to joining the house church. Specifically, she differentiated, in her mind, between “Catholic” and “Christian” churches, as follows: Q." }, { "docid": "22668986", "title": "", "text": "the alien simply to describe the facts or experiences upon which his or her fear is based, and the interview will usually provide a reliable record of the alien’s basis for seeking asylum. Thus, the INS may rely on airport statements in judging an asylum applicant’s credibility if the record of the interview indicates that it presents an accurate record of the alien’s statements, and that it was not conducted under coercive or misleading circumstances. See Balasubramanrim, 143 F.3d at 164 (holding that the interview “in this case” was not sufficiently reliable to support finding that alien was not credible); cf. Chen v. INS, 344 F.3d 272, 274 (2d Cir.2003) (per curiam) (assuming that BIA properly relied on alien’s airport interview statements). Balasubramanrim and Senathirajah thus stand for the proposition, with which we concur, that the BIA and reviewing courts must closely examine each airport interview before concluding that it represents a sufficiently accurate record of the alien’s statements to merit consideration in determining whether the alien is credible. See Senathirajah, 157 F.3d at 218. The airport interview is an inherently limited forum for the alien to express the fear that will provide the basis for his or her asylum claim, and the BIA must be cognizant of the interview’s limitations when using its substance against an asylum applicant. Id. The interview takes place immediately after an alien has arrived in the United States, often after weeks of travel, and may be perceived by the alien as coercive or threatening, depending on the alien’s past experiences. Moreover, at the interview, the alien is not represented by counsel, and may be completely unfamiliar with United States immigration laws and the elements necessary to demonstrate eligibility for asylum. Finally, because those most in need of asylum may be the most wary of governmental authorities, the BIA and reviewing court must recognize, in evaluating the statements made in an interview, that an alien may not be entirely forthcoming in the initial interview. With these limitations in mind, the Third Circuit in Balasubramanrim and Senathimjah delineated several factors that the BIA should use to" }, { "docid": "22668972", "title": "", "text": "the assistance of a Tamil interpreter and because it is clear that Ramsameaehire understood the nature of the proceedings; (2) the BIA’s determination that Ramsameachire’s testimony was not credible, and its consequent conclusion that he had not established his eligibility for asylum, are supported by substantial evidence; (3) the BIA’s finding that Ramsameaehire was not credible also precluded holding that he was entitled to asylum based on a pattern or practice of persecution; (4) the BIA’s determination that Ramsameaehire failed to establish his entitlement to withholding of removal pursuant to 8 U.S.C. § 1231(b)(3)(A) is supported by substantial evidence; and (5) the BIA’s failure to consider Ramsamea-ehire’s evidence of country conditions before rejecting his CAT claim violated CAT’s implementing regulations. We therefore affirm the BIA’s rejection of Ramsameachire’s claims for asylum and withholding of removal under the INA, and vacate and remand its decision on his CAT claim. BACKGROUND Ramsameaehire is a native and citizen of Sri Lanka, and a member of its ethnic Tamil minority, which comprises roughly eighteen percent of Sri Lanka’s population. For over fifteen years, Sri Lanka’s Tamils have been engaged in a civil war with the majority Sinhalese population, which controls the government. See Balasubramanrim v. INS, 143 F.3d 157, 159-60 (3d Cir.1998). The fighting is primarily conducted by the Liberation Tigers of Tamil Eelam (LTTE). Ramsameaehire alleges that, although he has never been a member or supporter of LTTE, the government suspected him of being affiliated with the group simply because he was an adult Tamil male. He claims that he was repeatedly harassed and arrested as a result. Ramsameaehire arrived in the United States via Haiti on July 28, 2000, having departed Sri Lanka a few weeks before. He attempted to enter the United States with a fraudulent Canadian passport, rendering him inadmissible under 8 U.S.C. § 1182(a)(6) and (7), which provide that aliens in possession of fraudulent documentation may not be admitted into the United States. Ramsameaehire claimed asylum, however, and was referred to an Immigration and Naturalization Service (“INS”) officer for an interview, to be conducted at the airport where he" }, { "docid": "22668978", "title": "", "text": "based entirely on his finding that Ramsa- meachire’s hearing testimony was not credible because of its inconsistency with his airport interview. Specifically, the IJ noted that Ramsameachire’s stated reasons for his fear of returning to Sri Lan-ka had changed: in his airport interview, he stated that he would be punished for leaving the country, while in his asylum application, he claimed that he would be persecuted because he was a Tamil. His account of the arrests, the reasons for the arrests, and their duration was also markedly different in the two proceedings. Furthermore, there were additional inconsistencies as to collateral matters, such as where he had lived and whether his family knew about his arrests. Because Ram-sameachire had failed to establish his entitlement to asylum, the IJ concluded that Ramsameachire had necessarily failed to show that he was entitled to withholding of removal pursuant to the INA, which requires a higher degree of proof than an asylum claim. Finally, the IJ concluded that because there was “no testimony here that [Ramsameachire] would be tortured by the Sri Lankan government upon his return,” he was not entitled to withholding of removal pursuant to CAT. Ramsameachire appealed to the BIA, which affirmed the IJ’s decision on April 25, 2001. The BIA upheld the IJ’s credibility determination, also emphasizing the variance between Ramsameaehire’s airport interview statements and his hearing testimony, particularly with respect to his reasons for fearing harm and the treatment he received when he was arrested. Although the agency noted that airport interviews are of limited value and that the agency should be “cautious” in relying on inconsistencies between the airport interview and later statements, it concluded that the inconsistencies in Ramsamea-chire’s accounts were so fundamental that they were entitled to “considerable weight.” In light of these inconsistencies, the BIA determined that “[i]t follows that the respondent has failed to satisfy his burden of persuasion,” and “[g]iven our finding in this regard, we need not address the respondent’s arguments on appeal relating to the country conditions in Sri Lan-ka.” With respect to Ramsameachire’s CAT claim, the BIA simply stated that he" }, { "docid": "1030851", "title": "", "text": "engage [petitioner in a conversation where he felt free to talk with the INS officers about his experiences in Iraq and his fears about future persecution.” This Court has recognized that airport interviews are useful only if they are rehable. Relying on the Second Circuit’s opinion in Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir.2004), we recently set forth a nonexclusive list of factors to consider in determining whether an asylum seeker’s airport interview is reliable: First, a record of the interview that merely summarizes or paraphrases the alien’s statements is inherently less reliable than a verbatim account or transcript. Second, similarly less rehable are interviews in which the questions asked are not designed to elicit the details of an asylum claim, or the INS officer fails to ask follow-up questions that would aid the alien in developing his or her account. Third, an interview may be deemed less reliable if the alien appears to have been reluctant to reveal information to INS officials because of prior interrogation sessions or other coercive experiences in his or her home country. Finally, if the alien’s answers to the questions posed suggest that the ahen did not understand English or the translations provided by the interpreter, the alien’s statements should be considered less reliable. Balogun, 374 F.3d at 505 (quoting Ramsa-meachire, 357 F.3d at 180). Considering these factors, we are confident that the airport interview was reliable and part of a sound basis for finding petitioner’s asylum claim incredible. The first and fourth Balogun factors squarely cut against petitioner’s assertion that the interview was unreliable. The record contains a full transcript of the interview, which was conducted with the benefit of a translator. Based on this transcript, there is no indication (nor does petitioner argue) that he did not understand the questions. Cf. Balasubramanrim v. INS, 143 F.3d 157, 163-64 (3d Cir.1998) (finding that BIA’s adverse credibility determination based entirely on discrepancies between petitioner’s airport statement and testimony to the IJ was unreasonable where petitioner knew little English, was not provided a translator during the airport interview, and questions posed were not designed" }, { "docid": "22881310", "title": "", "text": "Id. at 179-80 (relying on Balasubramanrim v. INS, 143 F.3d 157 (3d Cir.1998) and Senathirajah v. INS, 157 F.3d 210 (3d Cir.1998)). We further explained that the BIA, upon determining that an airport interview is sufficiently reliable, should accord weight to any discrepancies between the airport interview and later statements “in light of the relatively superficial nature of the airport interview.” Id. at 180. Where, however, the concerns identified in Ramsameachire do not apply ■ to the same degree, we have recognized that the BIA and reviewing courts need not engage in “special scrutiny” of an interview record. See Diallo v. Gonzales, 445 F.3d 624, 632 (2d Cir.2006) (“[I]n light of the differences between asylum interview[s] and airport interviews, ... asylum interview[s] ... do not call for special scrutiny, as airport interviews do.”). For example, in Diallo, we noted that, in contrast with airport interviews, asylum interviews “take place after the alien has arrived in the United States, has taken the time to submit a formal asylum application, and has had the opportunity to gather his or her thoughts, to prepare for the interview, and to obtain counsel.” Id. On that basis, we concluded that “the imperative to ‘closely examine’ the reliability of asylum interviews is not as pressing as it is in the airport interview context.” Id. (quoting Ramsameachire, 357 F.3d at 179). We further explained: This is not to say, of course, that the BIA and reviewing courts are not required carefully to consider the reliability of asylum interviews. Of course they are. As with other materials in the asylum record, factfinders should accord to them the weight that they merit in light of the record as a whole, and we should review the resulting factual determinations for substantial evidence. Id. Credible fear interviews occur after an alien has, at an airport interview, “indicate[d] an intention to apply for asylum, or expresse[d] a fear of persecution or torture, or a fear of return to his or her country.” 8 C.F.R. § 235.3(b)(4). Federal regulations require that all applicants who are referred from an airport interview to a credible" }, { "docid": "22668983", "title": "", "text": "the alien present credible testimony that he subjectively fears persecution and establish that his fear is objectively reasonable. Abankwah v. INS, 185 F.3d 18, 22 (2d Cir.1999). Thus, proving well-founded fear requires that the applicant establish both a subjective and an objective element. “The former is established via the applicant’s credible testimony that his fear is genuine; while the latter is largely dependent upon the context and believability he can establish for his claims through presentation of reliable, specific, objective supporting evidence.” Cordero-Trejo v. INS, 40 F.3d 482, 491 (1st Cir.1994). Once the applicant establishes that he is a refugee, the Attorney General has discretion to decide whether to grant him asylum. 8 U.S.C. § 1158(b)(1). Claims for withholding of removal under the INA are closely related to asylum, but the Attorney General must grant withholding of removal to aliens who have established the necessary elements. Accordingly, an application for withholding of removal requires a higher standard of proof. If the alien establishes that it is more likely than not that his “life or freedom would be threatened in [the] country because of [his] race, religion, nationality, membership in a particular social group, or political opinion,” the Attorney General must grant withholding of removal. 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)(1). Because the withholding of removal analysis overlaps factually with the asylum analysis, but involves a higher burden of proof, an alien who fails to establish his entitlement to asylum necessarily fails to establish his entitlement to withholding of removal. Zhang v. Slattery, 55 F.3d 732, 738 (2d Cir.1995). A. The BIA’s Credibility Determination and Rejection of Ramsamea-chire’s Asylum Claim The BIA found that the inconsistencies in Ramsameachire’s statements rendered him incredible, and denied his asylum and withholding of removal claims solely on the basis of the inconsistencies. Although the BIA did not parse the two means of establishing refugee status, its adverse credibility determination necessarily precluded finding that Ramsameachire had demonstrated that he had suffered persecution in the past, and that Ramsameachire subjectively feared that he would be harmed in the future. Thus, the BIA’s conclusion as to" }, { "docid": "22668992", "title": "", "text": "limitations inherent to the airport interview process, which are largely caused by a lack of time and resources,” it must always “be cautious when contrasting an alien’s airport statement to his written asylum application and oral testimony,” but found that Ramsameachire’s interview was reliable enough to use as a source of his prior statements about his asylum claim. This conclusion is supported by substantial evidence. Ramsameachire’s airport interview was conducted in a non-coercive and careful manner. At the beginning of the interview, the INS officer explained to Ramsameachire that “U.S. law provides protection to certain persons who face persecution ... upon return to their home country. If you fear ... being removed from the United States or ... being sent home, you should tell me so during this interview because you may not have another chance.” The interview did not proceed until Ramsameachire indicated that he understood the officer’s statement and his rights under United States law. Moreover, Ramsameachire was provided with a Tamil interpreter, and was specifically asked if he could understand him or her, alleviating any concern that he was not able to understand the proceedings, or make himself understood. Cf. Senathimjah, 157 F.3d at 218 (noting that alien had asked for an interpreter and none was provided). Ramsameachire was asked questions that were clearly designed to elicit a potential basis for an asylum claim, such as whether he would be harmed on his return and why, whether he had ever been arrested and why, and whether he had been harmed by authorities in his home country. When Ramsameachire stated that he feared returning to Sri Lanka because he might be punished for seeking asylum in the United States, the INS officer asked follow-up questions. Thus, unlike the interview at issue in Balasubramanrim, 143 F.3d at 162, Ramsameachire’s interview provided him with ample opportunity to explain his fear of returning to Sri Lanka, and any harm that he had suffered there in the past. Moreover, the record of his statement bears hallmarks of accuracy and reliability, as it is typewritten, signed by Ramsameachire, and initialed by him on" }, { "docid": "22668979", "title": "", "text": "the Sri Lankan government upon his return,” he was not entitled to withholding of removal pursuant to CAT. Ramsameachire appealed to the BIA, which affirmed the IJ’s decision on April 25, 2001. The BIA upheld the IJ’s credibility determination, also emphasizing the variance between Ramsameaehire’s airport interview statements and his hearing testimony, particularly with respect to his reasons for fearing harm and the treatment he received when he was arrested. Although the agency noted that airport interviews are of limited value and that the agency should be “cautious” in relying on inconsistencies between the airport interview and later statements, it concluded that the inconsistencies in Ramsamea-chire’s accounts were so fundamental that they were entitled to “considerable weight.” In light of these inconsistencies, the BIA determined that “[i]t follows that the respondent has failed to satisfy his burden of persuasion,” and “[g]iven our finding in this regard, we need not address the respondent’s arguments on appeal relating to the country conditions in Sri Lan-ka.” With respect to Ramsameachire’s CAT claim, the BIA simply stated that he “has failed to establish that he would be subject to torture by any public official in Sri Lanka, ... and thus has failed to articulate a claim under the [CAT].” This appeal followed. DISCUSSION On appeal, petitioner raises a number of challenges to the determinations of the BIA. First, Ramsameachire argues that the agency should not have relied solely on his airport statement in concluding that inconsistencies in his statements rendered him not credible, and that the denial of asylum was therefore not supported by substantial evidence. Second, Ramsamea-chire claims that the INS incorrectly relied on its adverse credibility determination, to the exclusion of his proffered evidence of country conditions, in rejecting his claim that he was entitled to asylum based on a pattern or practice of persecution of Tamils. Third, he argues that the INS should not have relied solely on its adverse credibility determination in denying him relief under CAT, and that it should have considered his proffered objective evidence that both Tamils and returned asylum seekers are persecuted in Sri Lanka. I." }, { "docid": "22073641", "title": "", "text": "omitted). Nor do we find error in the IJ’s grounding of his adverse credibility determination partially upon Chen’s failure to corroborate his claim that individuals known to his family were subjected to beatings upon their return to China. We have held previously that although “it is inappropriate to base a credibility determination solely on the failure to produce corroborative evidence,” Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000) (emphasis added), “[t]he presence or absence of corroboration may properly be considered in determining credibility,” id. See Xiao Ji Chen, 434 F.3d at 164. Finally, the IJ committed no error by relying upon Chen’s airport interview as a basis for the determination of adverse credibility. See Ramsameachire v. Ashcroft, 357 F.3d 169, 181-82 (2d Cir.2004) (“Where the alien’s airport statements and his or her later testimony present materially different accounts of his or her purported persecution ... the inconsistencies may render the alien’s testimony incredible.”). In particular, we find it relevant that the interview in this case (1) was recorded verbatim; (2) included questions reasonably designed to elicit details of petitioner’s asylum claim; (3) was conducted through a translator; and (4) was apparently unhindered by prior coercive experiences or interrogations. All of this suggests that Chen’s airport statements “provide a reliable record,” id. at 179, and a permissible “basis for finding the alien’s testimony incredible,” id. at 180. See id. (“If, after reviewing the record of the interview in light of these factors and other relevant considerations suggested by the circumstances of the interview, the BIA concludes that the record of the interview and the alien’s statements are reliable, then the agency may, in appropriate circumstances, use those statements as a basis for finding the alien’s testimony incredible.”). We have considered all of petitioner’s remaining arguments and find each of them to be without merit. Accordingly, the petition for review is hereby DENiEn. . Petitioner failed to raise his claim for CAT relief before the BIA and has failed to address either his withholding-of-removal claim or his CAT claim before this Court. Because petitioner did not exhaust his administrative remedies before" }, { "docid": "22668970", "title": "", "text": "SOTOMAYOR, Circuit Judge. Petitioner Nadarjh Ramsameachire (“petitioner” or “Ramsameachire”), a citizen of Sri Lanka and a member of that nation’s ethnic Tamil minority, appeals from the decision of the Board of Immigration Appeals (“BIA”) denying his application for asylum and withholding of removal pursuant to the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158 and 1231, respectively, and for withholding of removal pursuant to the Convention Against Torture (“CAT”) and its implementing regulations, see 8 C.F.R. § 208.16. At his removal hearing, Ramsameachire testified as to his purported past persecution on the basis of his ethnicity and imputed political beliefs, as well as his fear of further persecution if returned to Sri Lan-ka. The Immigration Judge (“IJ”) determined that Ramsameachire’s testimony at the hearing differed substantially from his prior statements to an asylum officer during his airport interview, and based on these inconsistencies, found that Ramsa-meachire had no well-founded fear of persecution, and had not established that there was any danger that he would be persecuted or tortured if he was removed to Sri Lanka. The IJ concluded that Ram-sameachire’s lack of credibility therefore precluded relief under both the INA and CAT. The BIA affirmed the IJ’s decision, including the credibility determination. Ramsameachire now challenges the basis for the BIA’s adverse credibility finding, arguing that his airport statement cannot provide the sole basis for discounting his hearing testimony. He also argues that even if the credibility determination was correct, the BIA and IJ should not have relied upon it in rejecting his alternative basis for fearing persecution, that Tamils as a group are subject to a pattern or practice of persecution. Finally, he challenges the rejection of his CAT claim, asserting that the BIA and IJ were required to consider his proffered evidence of the conditions in Sri Lanka before concluding that he was not entitled to withholding of removal pursuant to CAT. We hold that (1) although airport statements can, in some circumstances, be unreliable, the BIA was entitled to consider Ramsameachire’s airport interview statements in making its credibility determination, because the airport interview was carefully conducted with" }, { "docid": "22746295", "title": "", "text": "“[w]here the alien’s airport statements and his or her later testimony present materially different accounts of his or her purported persecution, ... the inconsistencies may render the alien’s testimony incredible.” Id. at 180-81 (emphasis added). Upon our review of the record, we hold that the IJ and BIA did not err in basing their adverse credibility findings on inconsistencies between Guan’s account of persecution at the time of her airport interview and her later account before the IJ. Where, as here, immigration officials have been presented with two “materially different” asylum claims, it is entirely appropriate for a factfinder to rely on this evidence as a basis for determining whether a petitioner was actually persecuted in the manner asserted or is instead merely reciting an account fabricated for the purposes of obtaining entry into the United States. Such evidence, no less than a fact-finder’s assessment of a petitioner’s demeanor as a witness, provides a crucial means of distinguishing between valid and invalid — or more accurately, persuasive and unpersuasive — claims of persecution. Because in the space of nine months Guan completely altered her explanation for fleeing China, and because these inconsistencies concerned matters that “went to the heart of [her] asylum claim,” Ramsameachire, 357 F.3d at 182, we reject Guan’s contention that these contradictions are “so minor, isolated and immaterial as to be unacceptable bases for a negative credibility finding,” Pet’r’s Br. at 14. The facts of this case strongly resemble those in Ramsameachire, where petitioner “at the airport interview ... indicated that he feared persecution if he returned to Sri Lanka because of his status as a returned asylum seeker, [but] in his asylum application, hearing testimony, and legal arguments ... focused solely on his fear of ethnic persecution.” Ramsameachire, 357 F.3d at 182. There, we held that “[i]f he had indeed been arrested because he was a Tamil, he could have asserted as much in response to the airport interviewer’s questions about his fear of harm.” Id. (emphasis added). Because Ramsameachire’s “airport statements paint[ed] a very different picture than his testimony and written asylum application,” we concluded" }, { "docid": "22668985", "title": "", "text": "Ramsameaehire’s credibility was determinative of both his asylum and withholding of removal claims. Ramsameachire argues that the INS incorrectly concluded that he was incredible solely on the basis of inconsistencies between his testimony at the removal proceeding and his airport statement. In challenging the BIA’s determination, Ramsameachire relies on Balasubramanrim v. INS, 143 F.3d 157, 162 (3d Cir.1998), and Senathirajah v. INS, 157 F.3d 210 (3d Cir.1998), both of which he incorrectly characterizes as precluding exclusive reliance on airport statements in making adverse credibility determinations. Contrary to Ramsameachire’s argument, Balasubramanrim and Senathirajah hold only that the BIA may not rely on an alien’s airport interview where “an examination of the record reveals that [the alien’s] airport interview may not represent an accurate account of the persecution suffered” by the alien in his home country. Balasubramanrim, 143 F.3d at 162; see also Senathirajah, 157 F.3d at 217-18. The airport interview is intended to provide the alien an opportunity to express his or her concerns about removal to his or her home country, a task that requires the alien simply to describe the facts or experiences upon which his or her fear is based, and the interview will usually provide a reliable record of the alien’s basis for seeking asylum. Thus, the INS may rely on airport statements in judging an asylum applicant’s credibility if the record of the interview indicates that it presents an accurate record of the alien’s statements, and that it was not conducted under coercive or misleading circumstances. See Balasubramanrim, 143 F.3d at 164 (holding that the interview “in this case” was not sufficiently reliable to support finding that alien was not credible); cf. Chen v. INS, 344 F.3d 272, 274 (2d Cir.2003) (per curiam) (assuming that BIA properly relied on alien’s airport interview statements). Balasubramanrim and Senathirajah thus stand for the proposition, with which we concur, that the BIA and reviewing courts must closely examine each airport interview before concluding that it represents a sufficiently accurate record of the alien’s statements to merit consideration in determining whether the alien is credible. See Senathirajah, 157 F.3d at 218." }, { "docid": "22668993", "title": "", "text": "her, alleviating any concern that he was not able to understand the proceedings, or make himself understood. Cf. Senathimjah, 157 F.3d at 218 (noting that alien had asked for an interpreter and none was provided). Ramsameachire was asked questions that were clearly designed to elicit a potential basis for an asylum claim, such as whether he would be harmed on his return and why, whether he had ever been arrested and why, and whether he had been harmed by authorities in his home country. When Ramsameachire stated that he feared returning to Sri Lanka because he might be punished for seeking asylum in the United States, the INS officer asked follow-up questions. Thus, unlike the interview at issue in Balasubramanrim, 143 F.3d at 162, Ramsameachire’s interview provided him with ample opportunity to explain his fear of returning to Sri Lanka, and any harm that he had suffered there in the past. Moreover, the record of his statement bears hallmarks of accuracy and reliability, as it is typewritten, signed by Ramsameachire, and initialed by him on each page. The record also indicates that he was given the opportunity to make corrections to the transcription. Finally, although Ramsameachire attempts to reconcile the differences between his airport statements and his later testimony by asserting that he was nervous about speaking to INS officials at the airport, the fact that he stated at the interview that he was comfortable speaking in a private room and that he understood the purpose of the interview undermines any claim that the interview was unduly coercive or that Ramsameaehire felt that he had no opportunity to explain his situation to the officer. The BIA was therefore entitled to rely on the airport interview as a source of Ramsamea-chire’s statements. The agency’s consequent rejection of Ramsameachire’s asylum claim based on the inconsistencies between his airport interview and his later statements is also supported by substantial evidence. As the BIA noted, the inconsistencies in Ramsameachire’s statements went to the heart of his asylum claim. Although at the airport interview he indicated that he feared persecution if returned to Sri Lanka" }, { "docid": "22611232", "title": "", "text": "the burden of proof to establish his or her eligibility for asylum. 8 C.F.R. § 208.Í3(a)(2002); Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir.2001). The alien must show by credible, direct, and specific evidence an objectively reasonable basis for the claimed fear of persecution. Balasubramanrim, 143 F.3d at 165. As we often have recognized, the substantial evidence standard of review is extremely deferential, setting a “high hurdle by permitting the reversal of factual findings only when the record evidence would ‘compel’ a reasonable factfinder to make a contrary determination.” Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir.2003) (quoting Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. at 815 n. 1). We therefore look at the adverse credibility determinations made by the IJ and BIA “to ensure that [they were] ‘appropriately based on inconsistent statements, contradictory evidences, and inherently improbable testimony ... in view of the background evidence on country conditions.’ ” Dia, 353 F.3d at 249 (citation omitted). While, as we will explain, we are troubled by some of the speculative statements the IJ and the BIA made, after reviewing the record as a whole we are convinced that the record evidence does not compel us to reach a conclusion contrary to that of the IJ and the BIA. We recognize that we have counseled against placing too much weight on an airport interview, especially when the IJ and BIA lack important information as to the manner in which the interview was conducted. Xie, 359 F.3d at 246; Mulanga v. Ashcroft, 349 F.3d 123, 137 (3d Cm. 2003) (“immaterial discrepancies between airport interviews and subsequent testimony should not be used to make adverse credibility determinations”); Ezeagwuna v. Ashcroft, 325 F.3d 396, 408 (3d Cir. 2003); Senathirajah v. INS, 157 F.3d 210, 217-18 (3d Cir.1998); Balasubramanrim, 143 F.3d at 162-64. We also have made clear that ambiguous answers at airport interviews should not be relied upon to question the credibility of the alien later, though we have limited concern with that admonition here as Chen does not challenge the manner in which the immigration official conducted the airport" }, { "docid": "23365487", "title": "", "text": "the alien has indeed been subject to government abuse in her country of origin.” Id. at 1279. In so doing, we relied upon opinions from several sister circuits that have concluded that an airport interview may be used to evaluate credibility as long it is reliable. See, e.g., Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir.2004); Balogun v. Ashcroft, 374 F.3d 492, 504-05 (7th Cir.2004); Balasubramanrim v. INS, 143 F.3d 157, 163-64 (3d Cir.1998). Consequently, in Tang we concluded that, although an IJ may consider contradictions between an asylum applicant’s airport interview and his later testimony, “if an alien’s statements during an airport interview are less detailed than the alien’s later testimony, the IJ should not focus exclusively on airport interview omissions, rather than contradictions, when determining whether the alien is credible.” Id. (emphasis added). Thus, Tang recognizes that airport interviews are useful and probative in evaluating an asylum applicant’s credibility, but that they must be used with care as to the nature of the variances with subsequent statements. In Shkambi’s case, unlike in Tang, the IJ did not rely exclusively on omissions from Shkambi’s airport interview to discredit him. Unlike in Tang, Shkambi’s airport interview statement was not merely a less detailed version of the facts he gave in later statements. Rather, Shkambi omitted entire incidents and other significant facts both during his airport interview and again at his credible-fear interview. And, during his hearing testimony, Shkambi directly contradicted his airport interview statement that he had never been arrested. Although Shkambi offered his fear as an explanation for these omissions and inconsistencies, that explanation does not compel a conclusion that Shkambi was credible. See Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1233 (11th Cir.2006) (concluding that, although asylum applicant offered tenable explanation for inconsistencies, the explanation did not compel reversal of the IJ’s adverse credibility determination). This is especially true here because the asylum officer at his credible-fear interview assured Shkambi (in his native language through an interpreter) that he should feel comfortable telling him the reasons he feared returning because they would not be disclosed to" }, { "docid": "22668984", "title": "", "text": "would be threatened in [the] country because of [his] race, religion, nationality, membership in a particular social group, or political opinion,” the Attorney General must grant withholding of removal. 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)(1). Because the withholding of removal analysis overlaps factually with the asylum analysis, but involves a higher burden of proof, an alien who fails to establish his entitlement to asylum necessarily fails to establish his entitlement to withholding of removal. Zhang v. Slattery, 55 F.3d 732, 738 (2d Cir.1995). A. The BIA’s Credibility Determination and Rejection of Ramsamea-chire’s Asylum Claim The BIA found that the inconsistencies in Ramsameachire’s statements rendered him incredible, and denied his asylum and withholding of removal claims solely on the basis of the inconsistencies. Although the BIA did not parse the two means of establishing refugee status, its adverse credibility determination necessarily precluded finding that Ramsameachire had demonstrated that he had suffered persecution in the past, and that Ramsameachire subjectively feared that he would be harmed in the future. Thus, the BIA’s conclusion as to Ramsameaehire’s credibility was determinative of both his asylum and withholding of removal claims. Ramsameachire argues that the INS incorrectly concluded that he was incredible solely on the basis of inconsistencies between his testimony at the removal proceeding and his airport statement. In challenging the BIA’s determination, Ramsameachire relies on Balasubramanrim v. INS, 143 F.3d 157, 162 (3d Cir.1998), and Senathirajah v. INS, 157 F.3d 210 (3d Cir.1998), both of which he incorrectly characterizes as precluding exclusive reliance on airport statements in making adverse credibility determinations. Contrary to Ramsameachire’s argument, Balasubramanrim and Senathirajah hold only that the BIA may not rely on an alien’s airport interview where “an examination of the record reveals that [the alien’s] airport interview may not represent an accurate account of the persecution suffered” by the alien in his home country. Balasubramanrim, 143 F.3d at 162; see also Senathirajah, 157 F.3d at 217-18. The airport interview is intended to provide the alien an opportunity to express his or her concerns about removal to his or her home country, a task that requires" } ]

[ { "docid": "22720123", "title": "", "text": "statutes expressly provide for the forfeiture of “profits,” “money,” “interest or property,” or “all property, real or personal,” acquired from racketeering. Brief for Petitioner 8-9. Nearly all of the state statutes postdate the Meyers and Thevis District Court decisions. See, e. g., Colo. Rev. Stat. § 18-17-106 (Supp. 1982) (enacted in 1981); R. I. Gen. Laws §7-15-3 (Supp. 1982) (enacted in 1979). The legislatures of those States presumably employed language different from that of § 1963(a)(1) so as to avoid narrow interpretations of their laws along the lines of the narrow interpretations given the federal statute by the courts in Meyers and Thevis. y If it is necessary to turn to the legislative history of the RICO statute, one finds that that history does not reveal, as petitioner would have us hold, see Brief for Petitioner 11-21, a limited congressional intent. The legislative history clearly demonstrates that the RICO statute was intended to provide new weapons of unprecedented scope for an assault upon organized crime and its economic roots. Congress’ statement of findings and purpose in enacting Pub. L. 91-452, 84 Stat. 922, is set forth in its § 1. This statement dramatically describes the problem presented by organized crime. Congress declared, id., at 923: “It is the purpose of this Act to seek the eradication of organized crime in the United States ... by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.” This Court has recognized the significance of this statement of findings and purpose. United States v. Turkette, 452 U. S., at 588-589. Further, Congress directed, by § 904(a) of Pub. L. 91-452, 84 Stat. 947: “The provisions of this title shall be liberally construed to effectuate its remedial purposes.” So far as we have been made aware, this is the only substantive federal criminal statute that contains such a directive; a similar provision, however, appears in the Criminal Appeals Act, 18 U. S. C. §3731. Congress emphasized the need to fashion new remedies in order to achieve its far-reaching objectives. See S. Rep. No. 91-617, p. 76" } ]

[ { "docid": "8134086", "title": "", "text": "v. Anderson, 626 F.2d 1358, 1367 (8th Cir.1980), cert. denied, 450 U.S. 912, 101 S.Ct. 1351, 67 L.Ed.2d 336 (1981), in which the court concluded that the enterprise element of the RICO offense constitutes an element of the crime not required for the predicate criminal acts. . Appellants Liberatore and Ciarcia are serving concurrent, not consecutive sentences for their bribery and RICO convictions. . Rule 14 provides in relevant part: If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. * * * MERRITT, Circuit Judge, concurring. I concur in the clear and well reasoned opinion prepared by Judge Kennedy. It may seem strange for a federal court to uphold convictions under a federal statute based on two underlying predicate state offenses for which a defendant has either been acquitted at state trials (the murder of Danny Greene) or for which he could not be separately convicted or punished under state law (conspiracy to murder Danny Greene). But RICO is now unique. The normal rules of construction do not apply to RICO. Although I had earlier believed that normal canons of construction applicable to other criminal statutes should be applied to RICO, see United States v. Sutton, 605 F.2d 260 (1979), reversed en banc, 642 F.2d 1001, 1042 (6th Cir.1980) (Merritt, J., dissenting), the Supreme Court has now made it clear that RICO is to be given the broadest and most expansive possible interpretation in order to carry out Congressional intent aimed at eliminating organized crime. See United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981) (RICO not limited to infiltration of a legitimate “enterprise”); Russello v. United States, — U.S. —, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983). In Russello, a unanimous Supreme Court has pointed to RICO as the only federal criminal statute which should receive this kind of" }, { "docid": "23073519", "title": "", "text": "we now turn to the legislative history of RICO. “ ‘[Ojnly the most extraordinary showing of contrary intentions’ in the legislative history will justify a departure” from the language of a statute when that language is plain and unambiguous. United States v. Albertini, — U.S.-, 105 S.Ct. 2897, 2902, 86 L.Ed.2d 536 (1985) (quoting Garciaa v. United States, — U.S. -, 105 S.Ct. 479, 482-83, 83 L.Ed.2d 472 (1984)). We believe that the legislative intent behind RICO’s forfeiture provision is not contrary to, and in fact strongly supports, our interpretation of section 1963(a)(1). As virtually every court that has interpreted any provision of RICO has recognized, RICO’s legislative history clearly demonstrates that the statute was intended as a comprehensive and unprecedented attack on organized crime and its economic bases. See Sedima, S.P.R.L. v. Imrex Co., — U.S. -, 105 S.Ct. 3275, 3286, 87 L.Ed.2d 346 (1985); Russello v. United States, 464 U.S. at 26, 104 S.Ct. at 302. Congress’s declared purpose in enacting RICO was “to seek the eradication of organized crime in the United States by ... establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.” Pub.L. No. 91-452, § 1, 84 Stat. 923 (1970). Congress further directed that “[t]he provisions of this title shall be liberally construed to effectuate its remedial purposes.” Id. § 904(a), 84 Stat. 947. The statute is replete with words and phrases of extraordinary breadth, see Sedima, 105 S.Ct. at 3286; Russello, 464 U.S. at 21-22, 104 S.Ct. at 302; Haroco, Inc. v. American National Bank & Trust Co., 747 F.2d 384, 390 (7th Cir.1984), aff'd, — U.S.-, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985), further evidencing the congressional intent to enact a statute of exceedingly broad scope. The goal of RICO’s forfeiture provision was “to remove the profit from organized crime by separating the racketeer from his dishonest gains.” Russello, 464 U.S. at 28, 104 S.Ct. at 303. The defendant argues that if the racketeer’s profits are no longer in existence at the time of conviction, then they" }, { "docid": "23271606", "title": "", "text": "for both criminal and civil liability. Pub.L. No. 91-452, § 901, 84 Stat. 922 (1970) (codified at 18 U.S.C. §§ 1961-1968). Civil RICO provides for treble damages. 18 U.S.C. § 1964(c). There has been some judicial resistance to RICO, manifested in narrow readings of its provisions by lower federal courts. In four notable cases, the Supreme Court has corrected these narrow readings. The first case was United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), which we discuss in detail later in this opinion. The First Circuit had read RICO to prohibit only the infiltration of legitimate businesses by organized crime. United States v. Turkette, 632 F.2d 896, 899 (1st Cir.1980). In its view, RICO did not prohibit criminal acts by purely criminal enterprises. Id. The Supreme Court held that the court of appeals had “clearly departed from and limited the statutory language.” Turkette, 452 U.S. at 581, 101 S.Ct. 2524. The Court explained: As a measure to deal with the infiltration of legitimate businesses by organized crime, RICO was both preventive and remedial.... If Congress had intended the more circumscribed approach espoused by the Court of Appeals, there would have been some positive sign that the law was not to reach organized criminal activities that give rise to the concerns about infiltration. The language of the statute, however — the most reliable evidence of its intent — reveals that Congress opted for a far broader definition of the word “enterprise,” and we are unconvinced by anything in the legislative . history that this definition should be given less than its full effect. Id. at 593,101 S.Ct. 2524. The second case was Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 481, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985), in which the Second Circuit had read civil RICO to impose liability only against defendants who had been criminally convicted, and only for what the court termed “racketeering injury.” The Supreme Court disagreed with both propositions. It noted that the court of appeals had narrowly construed RICO in order to avoid what that court viewed as “intolerable" }, { "docid": "8134088", "title": "", "text": "broad and expansive interpretation: The legislative history clearly demonstrates that the RICO statute was intended to provide new weapons of unprecedented scope for an assault upon organized crime and its economic roots.... Further, Congress directed, by § 904(a) of Pub.L. 91-452, 84 Stat. 947: “The provisions of this title shall be liberally construed to effectuate its remedial purposes.” So far as we have been made aware, this is the only substantive federal criminal statute that contains such a directive. ... 104 S.Ct. at 302. (emphasis added). Thus, RICO, liberally construed as required by the Supreme Court, can reasonably be interpreted, and therefore should be interpreted, so that a defendant can be convicted even though he has already been acquitted or convicted of the two underlying offenses in state court and even though he could not be convicted or punished for both offenses together under state law. In view of the Supreme Court’s decisions in Turkette and Russello, I therefore agree with our Court’s expansive construction of RICO in sections II, III, IV and VII. On the question of the admissibility of Ferritto’s prior testimony in the three state trials, the existence of the “enterprise” element in RICO is not a bar to admissibility, as defendants argue, because the “enterprise” element, in light of the Supreme Court’s holding in Turkette, has become a fiction. It has become synonymous with another element of the offense, namely, the “pattern of racketeering activity,” i.e., the two underlying state offenses. The “enterprise” element now adds nothing to the so-called “pattern” element. The two predicate offenses are the “enterprise.” All that is now required for a RICO offense is the commission of two predicate offenses which the state defines as separately chargeable and separately punishable. No further indicia of “enterprise” is now necessary." }, { "docid": "8134087", "title": "", "text": "state trials (the murder of Danny Greene) or for which he could not be separately convicted or punished under state law (conspiracy to murder Danny Greene). But RICO is now unique. The normal rules of construction do not apply to RICO. Although I had earlier believed that normal canons of construction applicable to other criminal statutes should be applied to RICO, see United States v. Sutton, 605 F.2d 260 (1979), reversed en banc, 642 F.2d 1001, 1042 (6th Cir.1980) (Merritt, J., dissenting), the Supreme Court has now made it clear that RICO is to be given the broadest and most expansive possible interpretation in order to carry out Congressional intent aimed at eliminating organized crime. See United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981) (RICO not limited to infiltration of a legitimate “enterprise”); Russello v. United States, — U.S. —, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983). In Russello, a unanimous Supreme Court has pointed to RICO as the only federal criminal statute which should receive this kind of broad and expansive interpretation: The legislative history clearly demonstrates that the RICO statute was intended to provide new weapons of unprecedented scope for an assault upon organized crime and its economic roots.... Further, Congress directed, by § 904(a) of Pub.L. 91-452, 84 Stat. 947: “The provisions of this title shall be liberally construed to effectuate its remedial purposes.” So far as we have been made aware, this is the only substantive federal criminal statute that contains such a directive. ... 104 S.Ct. at 302. (emphasis added). Thus, RICO, liberally construed as required by the Supreme Court, can reasonably be interpreted, and therefore should be interpreted, so that a defendant can be convicted even though he has already been acquitted or convicted of the two underlying offenses in state court and even though he could not be convicted or punished for both offenses together under state law. In view of the Supreme Court’s decisions in Turkette and Russello, I therefore agree with our Court’s expansive construction of RICO in sections II, III, IV and VII. On" }, { "docid": "22818463", "title": "", "text": "of ‘a clearly expressed legislative intent to the contrary, ... must ordinarily be regarded as conclusive,’ ” United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981) (quoting 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)). LILCO’s task is made all the more formidable by Congress’s “express admonition that RICO is to be ‘liberally construed to effectuate its remedial purposes,’ Pub.L. 91-452, § 904(a), 84 Stat. 947,” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 498, 105 S.Ct. 3275, 3286, 87 L.Ed.2d 346 (1985); see Turkette, 452 U.S. at 587, 101 S.Ct. at 2530; Beauford v. Helmsley, 865 F.2d 1386, 1393 (2d Cir.) (in banc), vacated and remanded, —- U.S. -, 109 S.Ct. 3236, 106 L.Ed.2d 584, adhered to upon further consideration, 893 F.2d 1433 (2d Cir.), cert. denied, — U.S. -, 110 S.Ct. 539, 107 L.Ed.2d 537 (1989). The district judge was of the opinion that the clear statement doctrine provided a sufficient means to overcome the obstacle presented by the plain language of the statute and the silence of its legislative history, and that because RICO’s application “to the facts of the present case would ... lead to ... the intrusion of federal authority into an area historically reserved to state control,” it was proper to invoke the doctrine. 710 F.Supp. at 1403. We disagree. In our view, application of the clear statement doctrine under the circumstances herein would represent an expansion of the doctrine which is not warranted by the facts of this case. Preliminarily, we note that the clear statement doctrine is simply a tool of statutory construction, designed “to ensure that federal legislation is not applied in a manner that may alter the delicate balance of federal and state power unless Congress has carefully considered and fully intended such a result.” 710 F.Supp. at 1400. The Supreme Court has applied the doctrine on occasion; the Court has also stated that “it would be a strange canon of statutory construction that would require Congress to state in committee" }, { "docid": "22939114", "title": "", "text": "83 L.Ed.2d 36 (1984). In fact the Justice Department itself appears to have not resolved its approach. Compare U.S. Department of Justice, Criminal Division, Racketeer Influenced and Corrupt Organizations (RICO): A Manual for Federal Prosecutors 72 (1985) (“As of mid-1985, it is the policy of the Organized Crime and Racketeering Section that every defendant in a proposed RICO conspiracy count must be shown to have agreed personally to commit two or more racketeering acts”), with the Department of Justice position in the present case. Our analysis of section 1962(d) is guided by two rules of RICO construction. First, the Supreme Court has consistently adhered to a broad, literal reading of the statute. “This is a lesson not only of Congress’ self-consciously expansive language and overall approach, ... but also of its express admonition that ‘RICO is to be liberally construed to effectuate its remedial purposes,’ Pub.L. 91-452, § 904(a), 84 Stat. 947.” Sedima, S.P.R.L. v. Imrex Co., — U.S. —, 105 S.Ct. 3275, 3286, 87 L.Ed.2d 346 (1985). See United States v. Turkette, 452 U.S. 576, 586-87, 101 S.Ct. 2524, 2530-31, 69 L.Ed.2d 246 (1981). See also Haroco, 747 F.2d at 398 (“[I]n RICO, we confront a statute which is not ambiguous but which is, above all, deliberately and extraordinarily broad.”). Second, and in some sense more important, it must be stressed that RICO is a remedial, as opposed to substantive, statute. See Sedima, 105 S.Ct. at 3286-87; Turkette, 452 U.S. at 589, 101 S.Ct. at 2531. See also The Statement of Findings of the Organized Crime Control Act of 1970, 84 Stat. 923 (Congressional purpose is “to seek the eradication of organized crime in the United States ... by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crimes.”). The provisions of section 1962 do not create “new crimes” but serve as the prerequisites for the invocation of increased sanctions for conduct which is proscribed elsewhere in both federal and state criminal codes. See Blakey & Gettings, Racketeer Influenced and Corrupt Organizations (RICO): Basic Concepts-Criminal" }, { "docid": "8024242", "title": "", "text": "in part). However, neither the language of the RICO forfeiture provision nor its legislative history provide support for a deduction of taxes paid from a forfeited salary. RICO’s criminal forfeiture provision calls for the forfeiture of “any interest ... acquired ... in violation of section 1962.” Congress explicitly directed the courts to interpret the RICO Act liberally to “effectuate its remedial purposes.” See Organized Crime Control Act of 1970, Pub.L. 91-452, § 904(a), 84 Stat. 947 (1970), quoted in Russello, 464 U.S. at 27, 104 S.Ct. at 302. The Supreme Court has concluded from the legislative history that the “statute was intended to provide new weapons of unprecedented scope for an assault upon organized crime and its economic roots.” Russello, 464 U.S. at 26, 104 S.Ct. at 302. Indeed, the Court concluded in Russel-lo that Congress “undoubtedly” chose the word “interest” because it “did not wish the forfeiture provision of § 1963(a) to be limited by rigid and technical definitions drawn from other areas of the law....” Id. at 21, 25, 104 S.Ct. at 299, 301. Moreover, the legislative history of the 1984 amendments to the RICO forfeiture provision indicate that the government need not prove net profits when it seeks to forfeit the property of an enterprise. See S.Rep. No. 98-225, at 199 (“[T]he term ‘proceeds’ has been used in lieu of the term ‘profits’ in order to alleviate the unreasonable burden on the government of proving net profits.”). In any event, appellants’ construction of “interest” would lead to the anomalous result that taxes could be deducted in those cases where defendants directly deposited their money in a bank account but not in cases where they used their “proceeds” to buy real property. In addition, a deduction for taxes could create unwarranted complexities in the administration of the statute. The amount of taxes that a person pays depends upon his or her other income as well as on the nature of deductions taken by the taxpayer. See El liott, 727 F.Supp. at 1129. Recognizing this difficulty, the majority in Lizza concluded that “RICO does not require the prosecution to" }, { "docid": "6692713", "title": "", "text": "(1970); Techniques, at 104. The House version, including the treble damages provision, was adopted. III. CASES CONSTRUING THE RICO TREBLE DAMAGES PROVISION As a result of Congress’ perception that innovative and far-reaching legislation was required to combat infiltration by organized crime, the RICO statute is strikingly broad. As the Supreme Court noted in United States v. Turkette, 452 U.S. 576, 587, 101 S.Ct. 2524, 2530, 69 L.Ed.2d 246 (1981), Congress, in the face of numerous objections, proceeded to enact RICO, “knowing that it would alter somewhat the role of the Feder- al Government in the war against organized crime and that the alteration would entail prosecutions involving acts of racketeering that, are also crimes under state law.” In light of the intended breadth of RICO, the Supreme Court in Turkette rejected an appellate court’s limited interpretation of the term “enterprise.” The Court refused to adopt this narrowing construction because it departed from the statutory language, 452 U.S. at 587, 101 S.Ct. at 2530, and because it would have placed whole areas of organized criminal activity outside the substantive reach of RICO. Id. at 589, 101 5. Ct. at 2531. The question of whether some standing or proximate cause requirements should be imposed on plaintiffs seeking to recover treble damages under RICO, however, is analytically different from the substantive limitations sought to be imposed by the appellate court in Turkette. Cf. Blue Shield v. McCready,-U.S.-,-- -, 102 S.Ct. 2540, 2547-48, 73 L.Ed.2d 149 (1982) (restrictions on § 4 of the Clayton Act analytically distinct from question of which persons have injuries too remote to give them standing to sue). Thus, several district courts, although aware of the strong policy favoring a liberal interpretation of RICO, have construed the treble damages provision more narrowly than a broad reading of the provision would suggest. These courts, relying on legislative history, parallels to antitrust law and policy considerations, have held that treble damages should not be available to plaintiffs whose sole injury stems from the predicate acts of racketeering. The near identity of language between § 1964(c) and § 4 of the Clayton Act," }, { "docid": "8024241", "title": "", "text": "the view of the Seventh Circuit, in Masters the court was concerned with costs and profits, and not with the question whether taxes paid are properly deducted from the forfeiture amount. See Masters 924 F.2d at 1369-70. These are different questions, to be treated separately. See Lizza, 775 F.2d at 498; Elliott, 727 F.Supp. at 1129. As the district court noted in Elliott, taxes are more like overhead, which the legislative history of RICO indicates should not be deducted. Elliott, 727 F.Supp. at 1129; see also S.Rep. No. 98-225, at 199 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3382 (stating that “[i]t should not be necessary for the prosecutor to prove what the defendant’s overhead expenses were”). The dissenting judge in Lizza suggested, appellants note, that “we lose sight of RICO’s basic purpose when we require a RICO defendant to forfeit to the Government that portion of the defendant’s unlawfully acquired profits which the Government already has taken by taxing the defendant’s income.” Lizza, 775 F.2d at 499 (Van Graaf-eiland, J., concurring in part and dissenting in part). However, neither the language of the RICO forfeiture provision nor its legislative history provide support for a deduction of taxes paid from a forfeited salary. RICO’s criminal forfeiture provision calls for the forfeiture of “any interest ... acquired ... in violation of section 1962.” Congress explicitly directed the courts to interpret the RICO Act liberally to “effectuate its remedial purposes.” See Organized Crime Control Act of 1970, Pub.L. 91-452, § 904(a), 84 Stat. 947 (1970), quoted in Russello, 464 U.S. at 27, 104 S.Ct. at 302. The Supreme Court has concluded from the legislative history that the “statute was intended to provide new weapons of unprecedented scope for an assault upon organized crime and its economic roots.” Russello, 464 U.S. at 26, 104 S.Ct. at 302. Indeed, the Court concluded in Russel-lo that Congress “undoubtedly” chose the word “interest” because it “did not wish the forfeiture provision of § 1963(a) to be limited by rigid and technical definitions drawn from other areas of the law....” Id. at 21, 25, 104 S.Ct. at 299," }, { "docid": "13931314", "title": "", "text": "recognized that it had left unresolved any ambiguity that might be inherent in the terms “profits” and “proceeds” and stated “[o]ur use of those terms is not intended to suggest a particular means of calculating the precise amount that is subject to RICO forfeiture in any given case.” Russello, 104 S.Ct. at 304 n. 3. Appellants argue that in this case the amount to be forfeited should be calculated on the basis of “net” profits. That is to say, they advocate a formula based on all of the money they acquired through the illegal contracts less: (1) the direct costs from the contracts; (2) an allocated portion of the overall indirect operating expenses; and (3) the taxes paid on the profits. Appellants claim that any calculation that fails to subtract overhead expenses and taxes unfairly violates the holding of United States v. Huber, 603 F.2d 387 (2d Cir.1979), which states that in RICO forfeiture cases, the punishment must “at least in some rough way [be] proportional to the crime.” Id. at 397. The district court calculated the forfeiture by deducting from the money received on the illegal contracts only the direct costs incurred in performing those contracts. This method of computing a forfeiture is consistent with the purposes of the RICO statute. As noted in Russello, “[t]he legislative history clearly demonstrates that the RICO statute was intended to provide new weapons of unprecedented scope for an assault upon organized crime and its economic roots.” Russello, 104 S.Ct. at 302. In fact, Congress instructed the courts that “[t]he provisions of this title shall be liberally construed to effectuate its remedial purposes.” § 904(a) of Pub.L. 91-452, 84 Stat. 947. We have already recognized that RICO’s forfeiture provision was intended as “a more potent weapon than fines or prison terms____” United States v. Walsh, 700 F.2d 846, 857 (2d Cir.1983), cert. denied, 464 U.S. 825, 104 S.Ct. 96, 78 L.Ed.2d 102 (1983). Thus, an expansive reading of § 1963(a)(1) is warranted. In United States v. Huber, we cautioned that there may be circumstances under which a forfeiture sanction is so harsh as" }, { "docid": "9353462", "title": "", "text": "been able to gain employment, because he was lawfully imprisoned at the time he alleges he suffered those injuries. . The RICO laws were developed as \"an aggressive initiative to supplement old remedies and develop new methods for fighting crime.” Sedima, 473 U.S. at 498, 105 S.Ct. 3275. The United States Congress envisioned a set of laws that would facilitate the \"irradi-cation of organized crime in the United States, by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.” 116 Cong. Rec. 35216 (1970) (remarks of Rep. Donohue). It is unlikely that the legislature would have had the foresight to see the law being utilized in an action against a municipality or its police officers; however, the law was \"aimed at keeping organized crime out of legitimate businesses” as well as illegitimate criminal enterprises. Id. at 35200; see also United States v. Turkette, 452 U.S. 576, 587, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981) (holding that the civil RICO statute applies to criminal as well as legitimate enterprises). Also, as the Supreme Court recognized in Sedima, \"RICO is to be read broadly. This is the lesson not only of Congress’ self-consciously expansive language and overall approach, but also of its express admonition that RICO is to 'be liberally construed to effectuate its remedial purposes.’ ” Sedima, 473 U.S. at 497-98, 105 S.Ct. 3275 (quoting Pub. L. 91-452, § 904(a), 84 Stat. 947.) (internal quotations and citations omitted). However, it would be contrary to the intent of Congress for this court to construe the statute so broadly that we completely read the \"restrictive significance,” see Reiter, 442 U.S. at 339, 99 S.Ct. 2326, of the “business or property” standing requirement out of 18 U.S.C. § 1964(c). As illustrated above, the provision incorporated into § 1964(c) was adopted directly and expressly from § 4 of the Clayton Act, 15 U.S.C. § 15. See supra p. 925 n. 19. Congressional lawmakers well understood that adopting the Clayton Act’s standing" }, { "docid": "23677956", "title": "", "text": "819 F.2d 806, 809 (7 Cir.1987) (plaintiff may recover under § 1964(c) by proving a violation of section 1962 and “an injury directly resulting from some or all of the activities comprising the violation”) (emphasis added). With all due respect to our sister circuits, we thus decline to read an “investment use” rule into the opaquely drafted § 1964(c). A second problem with the “investment use” rule is that it conflicts with the explicit policy that RICO be liberally interpreted. See Organized Crime Control Act of 1970, Pub.L. 91-452, § 904(a), 84 Stat. 947. This “liberal construction clause” has been cited by the Supreme Court to support broad applications of the RICO statute on three occasions. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 492 n. 10, 105 S.Ct. 3275, 3283 n. 10, 87 L.Ed.2d 346 (1985) (“if Congress’ liberal-construction mandate is to be applied anywhere, it is in § 1964, where RICO’s remedial purposes are most evident”); Russello v. United States, 464 U.S. 16, 27, 104 S.Ct. 296, 302, 78 L.Ed.2d 17, 18 (1983) (using legislative history to support broad use of criminal forfeiture provision); United States v. Turkette, 452 U.S. 576, 587, 101 S.Ct. 2524, 2530, 69 L.Ed.2d 246 (1981) (same; enterprise requirement). Cf. Northwestern Bell, 109 S.Ct. at 2905 (broadly interpreting pattern requirement: “Congress drafted RICO broadly enough to encompass a wide range of criminal activity, taking many different forms and likely to attract a broad array of perpetrators operating in many different ways.”). When enacted in 1970, Congress explicitly intended for RICO to cover corporations engaged in racketeering activity. Turkette, 452 U.S. at 587, 101 S.Ct. at 2530 (“insulating the wholly criminal enterprise from prosecution under RICO is the more incongruous position [given RICO’s language and legislative history]”); Goldsmith, RICO and Enterprise Criminality: A Response to Gerard E. Lynch, 88 Colum. L.Rev. 774, 786 (1988) (prosecution of legitimate but criminal enterprises was key Congressional concern). If the rule advocated by defendant is followed, however, corporate liability under RICO will be eviscerated. Given that the named “person” and the named “enterprise” must be separate for §" }, { "docid": "22673507", "title": "", "text": "requirement on the general principles that the RICO statute is to be read “broadly,” that it is to be “ ‘liberally construed to effectuate its remedial purposes,’” ante, at 498 (quoting Pub. L. 91-452, § 904(a), 84 Stat. 947), and that the statute was part of “an aggressive initiative to supplement old remedies and develop new methods for fighting crime.” Ante, at 498. Although the Court acknowledges that few of the legislative statements supporting these principles were made with reference to RICO’s private civil action, it concludes nevertheless that all of the Act’s provisions should be read in the “spirit” of these principles. Ibid. By constructing such a broad premise for its rejection of the “racketeering injury” requirement, the Court seems to mandate that all future courts read the entire statute broadly. It is neither necessary to the Court’s decision, nor in my view correct, to read the civil RICO provisions so expansively. We ruled in Turkette and Russello that the statute must be read broadly and construed liberally to effectuate its remedial purposes, but like the legislative history to which the Court alludes, it is clear we were referring there to RICO’s criminal provisions. It does not necessarily follow that the same principles apply to RICO’s private civil provisions. The Senate Report recognized a difference between criminal and civil enforcement in describing proposed civil remedies that would have been available to the Government. It emphasized that although those proposed remedies were intended to place additional pressure on organized crime, they were intended to reach “essentially an economic, not a punitive goal.” S. Rep., at 81 (emphasis added). The Report elaborated as follows: “However remedies may be fashioned, it is necessary to free the channels of commerce from predatory activities, but there is no intent to visit punishment on any individual; the purpose is civil. Punishment as such is limited to the criminal remedies . . . Ibid, (emphasis added; footnote omitted). The reference in the Report to “predatory activities” was to organized crime. Only a small fraction of the scores of civil RICO cases now being brought implicate organized" }, { "docid": "14089993", "title": "", "text": "that the only logical conclusion is that Congress intended the general remedies explicitly granted in § 1964(a) to be available to all plaintiffs. Although we would be confident resting our holding purely on the plain text of § 1964, we note that our interpretation is consistent with Congress’s admonition that the RICO statute is to be “liberally construed to effectuate its remedial purposes.” Pub.L. No. 91-452, § 904(a), 84 Stat. 947 (1970). Adhering to this admonition, which “obviously seeks to ensure that Congress’ intent is not frustrated by an overly narrow reading of the statute,” Reves v. Ernst & Young, 507 U.S. 170, 183, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993), the Supreme Court has consistently rejected interpretations by the courts of appeals that would limit the scope of RICO actions in ways not contemplated by the text of the statute. See, e.g., Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 121 S.Ct. 2087, 150 L.Ed.2d 198 (2001) (rejecting argument that employee of corporation acting within scope of employment cannot be a “person” distinct from the corporation); Salinas v. United States, 522 U.S. 52, 61-66, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997) (rejecting requirement that conspiracy defendant himself has committed predicate acts); NOW I, 510 U.S. at 256-62, 114 S.Ct. 798 (rejecting requirement that enterprise have an economic motive); Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) (rejecting requirements that defendant has been convicted of predicate act and that plaintiff has suffered a “racketeering injury,” as opposed to injury from mere predicate acts); United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981) (rejecting argument that RICO enterprise must have legitimate as well as illegitimate aspects). RICO’s liberal-construction clause has particular force, as the Supreme Court has stated, when we are construing § 1964, the civil remedy provision, because it is in this section that “RICO’s remedial purposes are most evident.” Sedima, 473 U.S. at 491 n. 10, 105 S.Ct. 3275. In keeping with the spirit of these cases, we decline to restrict the remedies available under RICO," }, { "docid": "13931315", "title": "", "text": "calculated the forfeiture by deducting from the money received on the illegal contracts only the direct costs incurred in performing those contracts. This method of computing a forfeiture is consistent with the purposes of the RICO statute. As noted in Russello, “[t]he legislative history clearly demonstrates that the RICO statute was intended to provide new weapons of unprecedented scope for an assault upon organized crime and its economic roots.” Russello, 104 S.Ct. at 302. In fact, Congress instructed the courts that “[t]he provisions of this title shall be liberally construed to effectuate its remedial purposes.” § 904(a) of Pub.L. 91-452, 84 Stat. 947. We have already recognized that RICO’s forfeiture provision was intended as “a more potent weapon than fines or prison terms____” United States v. Walsh, 700 F.2d 846, 857 (2d Cir.1983), cert. denied, 464 U.S. 825, 104 S.Ct. 96, 78 L.Ed.2d 102 (1983). Thus, an expansive reading of § 1963(a)(1) is warranted. In United States v. Huber, we cautioned that there may be circumstances under which a forfeiture sanction is so harsh as to violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Punishment best fits the crime when forfeiture — as it is in RICO — is keyed to the magnitude of a defendant’s criminal enterprise. 603 F.2d at 397. Calculation of forfeiture based on gross rather than net profits from illegal activity does not destroy this rough proportionality. Concededly, this method of calculation leaves open a possibility that defendants will be forfeiting profits that they would have made outside of their criminal activities. This should not cause us to scuttle the method of computing forfeiture. Forfeiture under RICO is a punitive, not a restitutive, measure. Often proof of overhead expenses and the like is subject to bookkeeping conjecture and is therefore speculative. RICO does not require the prosecution to prove or the trial court to resolve complex computations, so as to ensure that a convicted racketeer is not deprived of a single farthing more than his criminal acts produced. RICO’s object is to prevent the practice of racketeering, not to make the punishment so slight" }, { "docid": "22593929", "title": "", "text": "an “enterprise,” and that all the members of the conspiracy knowingly agreed to participate in or conduct that enterprise through a pattern of racketeering. A. Existence of an Enterprise “Enterprise,” according to the statute, “includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). The Supreme Court has recently held that a completely illegal organization may be an enterprise for RICO purposes. United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981); see also United States v. Provenzano, 620 F.2d 985, 992-93 (3d Cir.), cert. denied, 449 U.S. 899, 101 S.Ct. 267, 66 L.Ed.2d 129 (1980). The Turkette Court recognized that RICO’s primary purpose is to “address the infiltration of legitimate business by organized crime.” 452 U.S. at 591, 101 S.Ct. at 2532, but determined that it was not inconsistent with this purpose to read the plain language of the statute to punish the activities of illegal organizations even before that infiltration occurred. This “preventive” function enables federal law enforcement officials “to deal with the problem at its very source.” 452 U.S. at 591, 101 S.Ct. at 2532, 2533. In reaching its conclusion, the Supreme Court was not unmindful of the dangers of its interpretation. 452 U.S. at 582-83, 101 S.Ct. at 2528-29. Both judges and commentators had raised the concern that the concept of “illegal enterprise” could be construed quite broadly. Legal scholars had concluded that, without further refinement of the term, the statute could be extended to situations far removed from those actually contemplated by Congress, and that federal prosecutors could use the law to invoke an additional penalty whenever they had a case involving the commission of two offenses that, coincidentally, were among those listed as “racketeering activities.” See United States v. Anderson, 626 F.2d 1358 (8th Cir.1980), cert. denied 450 U.S. 912, 101 S.Ct. 1351, 67 L.Ed.2d 336 (1981); United States v. Sutton, 605 F.2d 260 (6th Cir.1979) rev’d en banc, 642 F.2d 1001 (6th Cir.1980), cert. denied, 453 U.S. 912, 101 S.Ct." }, { "docid": "2493605", "title": "", "text": "remedial provisions of RICO, RICO was designed to be an “aggressive initiative to supplement old remedies and develop new methods for fighting crime.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 498, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). Thus, in interpreting the scope of a RICO provision authorizing the forfeiture of “any interest [the defendant] has acquired ... in violation of section 1962,” 18 U.S.C. § 1963(a)(1), the Court noted that “[t]he legislative history clearly demonstrates that the RICO statute was intended to provide new weapons of unprecedented scope for an assault upon organized crime and its economic roots,” Russello v. United States, 464 U.S. 16, 26, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983). Similarly, in determining the scope of a provision authorizing a private civil action to recover treble damages for injury “by reason of a violation of’ any of RICO’s substantive provisions, 18 U.S.C. § 1964(c), the Court concluded that § 1964(c) should be “read broadly” in light of “Congress’ self-consciously expansive language and overall approach” in crafting RICO and Congress’s “express admonition that RICO is to ‘be liberally construed to effectuate its remedial purposes,’ ” Sedima, 473 U.S. at 497-98, 105 S.Ct. 3275 (quoting Pub.L. 91-452, § 904(a), 84 Stat. 947). The Sedima Court stated that, “[i]n-deed, if Congress’ liberal-construction mandate is to be applied anywhere, it is in § 1964, where RICO’s remedial purposes are most evident.” 473 U.S. at 491 n. 10, 105 S.Ct. 3275. This Court too, in considering orders enjoining civil RICO defendants from, inter alia, participating in their prior business and associating with their codefend-ants for any commercial purpose, and/or ordering them to disgorge assets derived from their unlawful conduct, has recognized that the district court has “broad discretion in fashioning relief’ under § 1964(a). United States v. Private Sanitation Industry Association of Nassau/Suffolk, Inc., 44 F.3d 1082, 1084 (2d Cir.1995) (denying motion by defendant Ferrante for stay of injunctive and disgorgement orders pending appeal); see also United States v. Private Sanitation Industry Association of Nassau/Suffolk, Inc., 47 F.3d 1158 (2d Cir.1995) (summarily affirming those orders against Fer-rante), cert. denied, 516" }, { "docid": "23195068", "title": "", "text": "the complaint would have to allege that there was an adverse economic impact upon the United States by virtue of the defendants’ conduct. RICO, however, was aimed at the destructive effect of organized criminal activity on our society. Its provisions do not focus on any adverse effect of specific activity on the nation’s GNP. Its history emphasizes the adverse consequences of organized crime on our democratic processes, our domestic security and our general welfare, including but not limited to the economic system. See RICO Statement of Findings and Purpose, Pub.L. No. 91-452, 84 Stat. 922 (1970), 91st Cong., 2d Sess., reprinted in 1970 U.S.Code Cong. & Admin.News 1073. The Supreme Court has stated: RICO is to be read broadly. This is the lesson not only of Congress’ self-consciously expansive language and overall approach, ... but also of its express admonition that RICO is to “be liberally construed to effectuate its remedial purposes.” ... RICO was an aggressive initiative to supplement old remedies and develop new methods for fighting crime. Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 497-98, 105 S.Ct. 3275, 3286, 87 L.Ed.2d 346 (1985); see also Russello v. United States, 464 U.S. 16, 26, 104 S.Ct. 296, 302, 78 L.Ed.2d 17 (1983) (“[t]he legislative history clearly demonstrates that the RICO statute was intended to provide new weapons of unprecedented scope for an assault upon organized crime and its economic roots”). What RICO does require is “a pattern of racketeering activity.” 18 U.S.C. § 1962. By definition, “racketeering activity” necessitates a violation of one of our state or federal laws. 18 U.S.C. § 1961. Federal RICO jurisdiction thus attaches only to those activities that allegedly violate our domestic laws. In this case, in Count One of the Complaint, the plaintiff alleges that the Marcos-es engaged in mail and wire fraud, and importation of stolen property into the United States in violation of 18 U.S.C. §§ 1341, 1343, 2314, 2315. In engaging in these activities, the plaintiff alleges that the Marcoses were conducting a RICO enterprise as part of an association in fact with the other defendants. These allegations," }, { "docid": "7561559", "title": "", "text": "(en banc), cert. denied, 453 U.S. 912, 101 S.Ct. 3144, 69 L.Ed.2d 995 (1981). The defendants present a number of arguments that the government failed to establish these four elements under § 1962(c) as a matter of law. Thus, in their view, neither the substantive RICO charge in count two nor the RICO conspiracy charge in count one can stand because the indictment failed to allege a RICO enterprise which was distinct from the pattern of racketeering activity in which they engaged, and because the indictment failed to properly allege a RICO conspiracy. Defendants also argue insufficient evidence either to establish a distinct RICO enterprise or to show that the enterprise affected interstate commerce. The RICO statute, it must be remembered, had the broad purpose of providing new means of combatting organized and/or continuing patterns of criminal activity. Congress itself specified: [t]he provisions of this title shall be liberally construed to effectuate its remedial purposes. Pub.Law No. 91-452, Title IX § 904(a), 84 Stat. 947 (1970). See Russello v. United States, 464 U.S. 16, 21, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983); United States v. Licavoli, 725 F.2d 1040 (6th Cir.), cert. denied, 104 S.Ct. 3535, 82 L.Ed.2d 840 (1984). RICO applies both to legitimate enterprises conducted through racketeering operations as well as illegitimate enterprises. United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). “[Enterprise” includes any individual, partnership, corporation, association, or other legal activity, and any union or group of individuals associated in fact although not a legal entity____ 18 U.S.C. § 1961(4) (1976). The government must establish, in a RICO prosecution, a “pattern of racketeering activity,” which as defined in 18 U.S.C. § 1961(5) (1976), consists of “at least two acts of racketeering activity ... the last of which occurred within ten years ... after the commission of a prior act of racketeering activity.” Under 18 U.S.C. § 1961(1) (Supp. IV 1980), “racketeering activity” includes a wide array of federal and state crimes; in the case at bar, the racketeering activity charged in the indictment is bribery under Michigan law, mail fraud in" } ]

[ { "docid": "22686315", "title": "", "text": "stated a Bivens cause of action. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.1987). As his complaint alleges, each defendant was a federal employee acting under color of federal law, not state law, “during all the time relevant to this complaint.” The district court denied Terrell’s motion for appointment of counsel pursuant to 28 U.S.C. § 1915(d). We review this for an abuse of discretion. Oliva v. Heller, 839 F.2d 37, 40 (2d Cir.1988) (Bivens action); McElyea v. Babbitt, 833 F.2d 196, 199-200 (9th Cir.1987) (section 1983 action). The court may appoint counsel under section 1915(d) only under “exceptional circumstances.” “A finding of exceptional circumstances requires an evaluation of both ‘the likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.’ Neither of these factors is dispositive and both must be viewed together before reaching a decision.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.1986) (citations omitted) (section 1983 action); See Smith-Bey v. Hospital Adm’r, 841 F.2d 751, 760 (7th Cir.1988) (Bivens action) (citing Maclin v. Freake, 650 F.2d 885, 887-88 (7th Cir.1981)). The trial court did not abuse its discretion by refusing to appoint counsel for Terrell. Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not of substantial complexity. The compelling evidence against Terrell made it extremely unlikely that he would succeed on the merits. The district court also denied Terrell’s request to stay summary judgment and continue discovery pursuant to Federal Rule of Civil Procedure 56(f). We review that denial for an abuse of discretion. Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1416-17 (9th Cir.1987). The court may grant such a request if the party opposing summary judgment needs additional time to discover “facts essential to justify the party’s opposition.” Fed.R. Civ.P. 56(f). The party opposing summary judgment bears the burden of showing “what facts she hopes to discover to raise a material issue of fact.” Hancock v. Montgomery Ward Long Term" } ]

[ { "docid": "15075227", "title": "", "text": "accord, e.g., Williams v. Kane, 1997 WL 527677 at *3; Ruiz v. Selsky, 96 Civ.2003, 1997 WL 137448 at *4 (S.D.N.Y. March 24, 1997) (Peck, M.J.); Morris v. Dann, No. 95-CV-975, 1996 WL 732559 at *3 (N.D.N.Y. Dec.11, 1996); Zamakshari v. Dvoskin, 899 F.Supp. 1097, 1109 (S.D.N.Y. 1995) (Sotomayor, D.J. & Peck, M.J.). Proof that state procedural law was violated does not by itself constitute a deprivation of due process because “[f]ederal constitutional standards rather than state law define the requirements of procedural due process.” Russell v. Coughlin, 910 F.2d 75, 78 n. 1 (2d Cir.1990); accord, e.g., Williams v. Kane, 1997 WL 527677 at *3; Ruiz v. Selsky, 1997 WL 137448 at *4; Zamakshari v. Dvoskin, 899 F.Supp. at 1104. I. UNDER SANDIN V. CONNER, 99 DAYS IN KEEPLOCK DOES NOT CONSTITUTE AN ATYPICAL AND SIGNIFICANT DEPRIVATION OF A PROTECTED LIBERTY INTEREST A. Sandin v. Conner Defendants’ summary judgment motion on Jackson’s keeplock due process claim turns on the application of the Supreme Court’s decision in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), which significantly changed the prisoner due process landscape. The Supreme Court there held: [W]e believe that the search for a negative implication from mandatory language in prisoner regulations has strayed from the real concerns undergirding the liberty protected by the Due Process Clause. The time has come to return to the due process principles we believe were correctly established and applied in Wolff and Meachum. Following Wolff, we recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. 515 U.S. at 483-84, 115 S.Ct. at 2300 (fns. & citations omitted). In Sandin, the prisoner was charged with a disciplinary infraction for physical interference with a correction officer," }, { "docid": "23682215", "title": "", "text": "Carlo reasoned that the state had created a protected liberty interest because the state law was mandatory. Id. at 499. In the present case, Hawaii law is both mandatory and clear. There is no dispute that Burt had to file a petition within two days of taking custody of the children, and that when he failed to do so, he violated state law. Nonetheless, we hold that the state law in this case did not clearly establish a federal right at the time Burt removed the children. Both Carlo and Olim dealt with state laws governing prisoners’ rights, not the rights of parents of children taken into emergency custody. In fact, as one court has noted, the “[ejstablishment of a liberty interest on the basis of state law, even when the doctrine was most in favor, was largely limited to state law regarding conditions of confinement in prisons and other institutions.” Dietz v. Damas, 932 F.Supp. 431, 453 (E.D.N.Y. 1996). The Supreme Court has recently limited the doctrine to a certain core of prisoners’ rights. See Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995) (citation omitted) (“[W]e recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause.... But these interests will be generally limited to freedom from restraint which ... imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”). Thus, Burt cannot reasonably have been expected to know that a doctrine largely confined to prison regulations, which had never before been applied to creating federal liberty interests in statutes like H.R.S. §§ 587-24 and 587-21, would cause his actions to violate Campbell’s federal constitutional rights. This is especially true given the fact, as discussed above, that federal ease law had not clearly established that a seven-day delay in seeking judicial review was unconstitutional. IV Campbell also appeals various other rulings of the district court. We hold that the district court did not abuse its discretion by denying Campbell’s motions for the appointment of counsel. See Storseth v." }, { "docid": "23559235", "title": "", "text": "clearly affected Andrew. Therefore, Andrew is entitled to relief under Rule 60(b)(4) and all orders entered without notice to Andrew are void. Center Wholesale, 759 F.2d at 1448. See Winhoven v. United States, 201 F.2d 174, 175 (9th Cir.1952). Coopersmith argues that we do not need to reach Andrew’s due process allegation because the bankruptcy judge permitted Andrew to make his objections, present his arguments and obtain court rulings on them. According to Coopersmith, Andrew appealed the orders entered by the court and any due process violation did not infringe on his rights. We disagree but nevertheless review the rulings on the merits. The bankruptcy court’s findings of fact are reviewed under the clearly erroneous standard and its conclusions of law de novo. Anderson v. City of Bessemer, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). In re American Mariner Industries, Inc., 734 F.2d 426 (9th Cir.1984), rev’d on other grounds, United Savings v. Timbers of Inwood Forest, — U.S. —, 108 S.Ct. 626, 98 L. Ed.2d 740 (1988). However, the order granting compensation of attorney’s fees should be reviewed for an abuse of discretion. In re Nucorp Energy, 764 F.2d 655, 657 (9th Cir.1985). In re Film Ventures International, 75 B.R. 250, 253 (9th Cir. BAP 1987). I. ATTORNEY’S FEES A. Employment Bankruptcy Code § 330 authorizes reasonable compensation to a professional person employed under Bankruptcy Code § 327. Both § 327 and Bankruptcy Rule 2014 explicitly require attorneys to seek the approval of the court before they commence employment for the estate. In re Kroeger Properties and Development, Inc., 57 B.R. 821 (9th Cir. BAP 1987). Feldman did not submit an application for compensation under Bankruptcy Code § 330. In lieu of such an application, the bankruptcy court abused its discretion in granting Feldman’s request for employment nunc pro tunc. Nucorp, 764 F.2d at 657. A nunc pro tunc order is improperly sought when the employment, due to an attorney’s mere negligence or inadvertence, has not yet been court approved. Allowing a judge to limit nunc pro tunc orders to extraordinary circumstances will deter attorneys from" }, { "docid": "23401996", "title": "", "text": "PER CURIAM. Inmate Dennis Cookish filed this action in the district court of New Hampshire, charging that he had been denied proper medical care by state authorities, and had been denied access to a law library. Later, he amended his complaint, and alleged that the law library at the New Hampshire State Prison was constitutionally inadequate. The district court reviewed the complaint, and concluded that it could withstand a motion to dismiss under Fed.R. Civ.P. 12(b)(6). Cookish requested that counsel be appointed for him; that request was denied. The district court issued a pre-trial order, set a discovery schedule, and set the matter for trial. Cookish requested that the trial court subpoena close to two dozen witnesses; his request was granted in part and denied in part. The matter was tried before a magistrate; both parties thereafter submitted post-trial briefs. In addition, Cookish, with the court’s permission, submitted into evidence affidavits from fellow inmates. The court concluded that the evidence did not support Cookish’ contention that his constitutional rights had been violated. On appeal Cookish challenged this conclusion; in addition, he argued that the district court abused its discretion by denying his request for appointed counsel, and by refusing to subpoena all of the witnesses he had requested. Cookish also argued that it was error for the court not to rule on issues raised in the pleadings but not argued at trial, and that the court erroneously admitted certain hearsay statements. We find none of appellant's arguments persuasive, and therefore affirm the judgment of the district court. Denial of Request for Counsel. The law is well established that there is no constitutional right to appointment of counsel in a civil case. Andrews v. Bechtel Power Corporation and Local 276, Plumbers and Pipefitters Union, 780 F.2d 124, 137 (1st Cir.1985). Section 1915(d) of Title 28, however, gives the district court the discretion to appoint counsel to an indigent litigant in appropriate circumstances. We review only to determine whether the district court abused its discretion. See, e.g., Childs v. Duckworth, 705 F.2d 915, 923 (7th Cir.1983). Cf. Andrews, supra, p. 137 (abuse" }, { "docid": "17562268", "title": "", "text": "held that a state must provide indigent criminal defendants with expert psychiatric assistance if the defendant’s mental condition is a significant factor at trial to satisfy Fourteenth Amendment due process requirements. See id. at 83, 105 S.Ct. 1087. But Ake was not the law when Chaney was convicted and as such is a “new rule” that cannot be applied on collateral review under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). While Teague does recognize certain exceptions, none apply here. Second, Chaney argues that Arizona has created a liberty interest in the provision of state-paid psychiatric assistance to indigent criminal defendants in the sentencing phase. Ariz.Rev.Stat. 13-4013(B) provides: When a person is charged with a capital offense the court ... shall upon application of the defendant and a showing that the defendant is financially unable to pay for such services, appoint such ... expert witnesses as are reasonably necessary adequately to present his defense at trial and at any subsequent proceeding. Chaney argues that the word “shall” creates a due process liberty interest in the experts he sought for the sentencing phase of his murder trial. A “negative implication from mandatory language” in a statute does not necessarily create a protected interest. Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (disapproving of Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)). State law may create a liberty interest when it protects an individual against arbitrary action of government. See Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Picray v. Sealock, 138 F.3d 767, 770 (9th Cir.1998). Procedural requirements do not create a liberty interest unless they cause a “significant substantive reduction” in decision-making, see Goodisman v. Lytle, 724 F.2d 818, 820 (9th Cir.1984), or create an imperative that mandates action unless certain clearly-defined exceptions are found to apply, see Baumann v. Arizona Dep’t of Corrections, 754 F.2d 841, 844 (9th Cir.1985) (noting that the Ninth Circuit endorses a restrictive interpretation of Greenholtz v. Inmates of the Nebraska Penal and" }, { "docid": "402927", "title": "", "text": "cell for two or three hours a day. At the end of this ten-month period, Brown was apparently returned to his previous custody status. Brown filed his initial complaint in this case in April, 1993, alleging due process, free exercise, and Eighth Amendment violations. After Brown had moved successfully for appointment of counsel and for leave to file an amended complaint, the District moved to dismiss, or in the alternative for summary judgment, as to all three of Brown’s claims. The district court granted the District’s motion as to Brown’s due process claim, but denied it as to his other two claims. (These claims, which involved Brown's rights to dental care and to attend religious services, have since been settled.) As to Brown’s due process claim, the district court found that, under Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), Brown did not have a liberty interest in remaining free of administrative segregation, because his confinement in administrative segregation did not amount to an “atypical and significant hardship.” 515 U.S. at 484, 115 S.Ct. at 2300. Brown then sought to file a second amended complaint in order to re-plead the due process claim and to add a related claim under District of Columbia law; the district court granted Brown leave to do so, but immediately dismissed the due process claim. Brown now appeals this dismissal. II. Analysis We first reject the District’s contention that because success on Brown’s due process claim would “necessarily imply” that the decision to place Brown in administrative segregation was invalid, Brown must bring his claim by way of habeas corpus. As to the merits of Brown’s due process claim, we address first whether Brown had a liberty interest in avoiding his term in administrative segregation, and then whether he received the process he was due. Our review is de novo because we are considering an appeal from a motion to dismiss or in the alternative for summary judgment. National Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1432 (D.C.Cir.1995) (dismissal); Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994) (summary" }, { "docid": "23682216", "title": "", "text": "See Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995) (citation omitted) (“[W]e recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause.... But these interests will be generally limited to freedom from restraint which ... imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”). Thus, Burt cannot reasonably have been expected to know that a doctrine largely confined to prison regulations, which had never before been applied to creating federal liberty interests in statutes like H.R.S. §§ 587-24 and 587-21, would cause his actions to violate Campbell’s federal constitutional rights. This is especially true given the fact, as discussed above, that federal ease law had not clearly established that a seven-day delay in seeking judicial review was unconstitutional. IV Campbell also appeals various other rulings of the district court. We hold that the district court did not abuse its discretion by denying Campbell’s motions for the appointment of counsel. See Storseth v. Spell-man, 654 F.2d 1349, 1353 (9th Cir.1981) (holding that there is no constitutional right to appointed counsel for § 1983 claims). We also hold that the district court did not abuse its discretion by denying Campbell’s motions for the joinder of his minor children and Rossi as plaintiffs in his pro se lawsuit. See Kescoli v. Babbitt, 101 F.3d 1304, 1309 (9th Cir.1996) (holding that joinder is reviewed for abuse of discretion). Neither Campbell’s children nor Rossi indicated a desire to join the lawsuit, and Campbell may not represent their interests in court. See Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) (holding that a parent cannot bring an action on behalf of minor children without retaining a lawyer); C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir.1987) (holding that while a nonattomey may represent himself, he has no authority to appear as an attorney for others). The district court also did not err by dismissing Campbell’s remaining state law claims, which were subject to qualified" }, { "docid": "1476643", "title": "", "text": "competent to testify to the matters stated therein. See Fed. R. Civ. P. 56(e); Conner v. Sakai, 15 F.3d 1463, 1470 (9th Cir.1993), rev’d on other growids sub noni., Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). . A district court’s denial of either motion is reviewed for an abuse of discretion. See Fuller, 950 F.2d at 1441. . The underlying decision on the merits, United States v. Navarro, 959 F.Supp. 1273 (E.D.Cal.1997), was reversed by United States v. Navarro, 160 F.3d 1254 (9th Cir.1998), cert. denied 527 U.S. 1011, 119 S.Ct. 2354, 144 L.Ed.2d 249 (1999). This reversal did not affect the district court’s denial of reconsideration. . “On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been revered or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.” Fed.R.Civ.P. 60(b) (1992). . Local Rule 78-23 0(k) permits reconsideration of: any motion [that] has been granted or denied in whole or in part, ... [upon motion] setting forth the material facts and circumstances surrounding each motion for which reconsideration is sought, including: (1) when and to what Judge or Magistrate Judge the prior motion was made, (2) what ruling, decision or order was made thereon, and (3) what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion. E.D. Cal. Civ. L.R." }, { "docid": "1476642", "title": "", "text": "of water. . Article 20 of the 1986 Judgment specifically precludes any reimbursement for the $0.50 drainage component paid prior to the Judgment: \"No party or water user shall be enli-tied to reimbursement of any $0.50 per acre foot drainage service charged paid in the past.” . Evidence submitted in support of or in opposition to a motion for summary judgment must be admissible under the standard articulated in 56(e). See Keenan v. Hall, 83 F.3d 1083, 1090 n. 1 (9th Cir.1996); Anheuser-Busch, Inc. v. Nat’l Beverage Distribs., 69 F.3d 337, 345 n. 4 (9th Cir.1995). Properly authenticated documents, including discovery documents, although such documents are not admissible in that form at trial, can be used in a motion for summary judgment if appropriately authenticated by affidavit or declaration. See United States v. Lot 4, Block 5 of Eaton Acres, 904 F.2d 487, 491-92 (9th Cir.1990). Supporting and opposing affidavits must be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. See Fed. R. Civ. P. 56(e); Conner v. Sakai, 15 F.3d 1463, 1470 (9th Cir.1993), rev’d on other growids sub noni., Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). . A district court’s denial of either motion is reviewed for an abuse of discretion. See Fuller, 950 F.2d at 1441. . The underlying decision on the merits, United States v. Navarro, 959 F.Supp. 1273 (E.D.Cal.1997), was reversed by United States v. Navarro, 160 F.3d 1254 (9th Cir.1998), cert. denied 527 U.S. 1011, 119 S.Ct. 2354, 144 L.Ed.2d 249 (1999). This reversal did not affect the district court’s denial of reconsideration. . “On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule" }, { "docid": "23559234", "title": "", "text": "at 199-200 (1973). Unsecured creditors are entitled to procedural due process. In a judicial proceeding, due process requires that individualized notice be given before rights can be affected. In re Blumer, 66 B.R. 109 (9th Cir. BAP 1986), aff'd, 826 F.2d 1069 (9th Cir.1987). In both Blumer and Center Wholesale, the statutory requirement that an order be entered only after “notice and a hearing” provided a basis for a constitutional requirement of procedural due process. In this case, Bankruptcy Code § 1127(b) also requires notice and a hearing before a modification can be made. Section 1127(b) provides that a modification of a plan becomes the plan “only if circumstances warrant such modification and the court, after notice and a hearing, confirms such plan as modified, under § 1129 of this Title.” (emphasis added.) Andrew never received notice of debtor’s motion to modify the plan. The modifications had the effect of permitting Coopers-mith to be paid in full, exhausting all the assets in the estate, leaving nothing for Andrew or for other unsecured creditors. The modifications clearly affected Andrew. Therefore, Andrew is entitled to relief under Rule 60(b)(4) and all orders entered without notice to Andrew are void. Center Wholesale, 759 F.2d at 1448. See Winhoven v. United States, 201 F.2d 174, 175 (9th Cir.1952). Coopersmith argues that we do not need to reach Andrew’s due process allegation because the bankruptcy judge permitted Andrew to make his objections, present his arguments and obtain court rulings on them. According to Coopersmith, Andrew appealed the orders entered by the court and any due process violation did not infringe on his rights. We disagree but nevertheless review the rulings on the merits. The bankruptcy court’s findings of fact are reviewed under the clearly erroneous standard and its conclusions of law de novo. Anderson v. City of Bessemer, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). In re American Mariner Industries, Inc., 734 F.2d 426 (9th Cir.1984), rev’d on other grounds, United Savings v. Timbers of Inwood Forest, — U.S. —, 108 S.Ct. 626, 98 L. Ed.2d 740 (1988). However, the order granting" }, { "docid": "23168354", "title": "", "text": "reason and thus § 710.16 is inapplicable—a different regulation governs non-diseiplinary segregation of people housed in county jails. See 20 IL ADC § 710.70 (covering separation of prisoners including for administrative reasons). While this regulation could also conceivably grant Zarnes a protected right to stay out of segregation, Hewitt’s analysis may no longer be applicable to that determination. See Sandin v. Conner, — U.S. —, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (holding that courts should turn their focus from looking solely at the language of state regulations to also considering the type of interest at stake, but noting that its holding may be limited to cases involving convicted prisoners). In any event, regardless of Sandin’s effect, § 710.70 does not contain any mandatory language relevant to this issue. Thus, the district court properly held that Rhodes did not deprive Zarnes of her right to due process by placing her in segregation. Finally, we note that we appointed counsel to represent Zarnes on appeal. While we have found that the district court did not abuse its discretion in originally refusing to do so, we are confident that the court will seriously consider any renewed motion for appointment of counsel on remand. For the foregoing reasons, we Affirm in part, Reverse in part and RemaND. . Although the district court granted this motion, it apparently simply added Zames’s new allegations to her original pleading; in the court's later order dismissing claims and its orders granting summary judgment to both Lamb and Rhodes, the court relied on allegations only contained in Zames’s first complaint. We therefore refer to both documents as one. . We often find counsel necessary when a case involves complex medical evidence. See, e.g., Jackson, 953 F.2d at 1073; Hughes v. Joliet Correctional Center, 931 F.2d 425, 429 (7th Cir.1991); Merritt v. Faulkner, 697 F.2d 761, 765 (7th Cir.), cert. denied, 464 U.S. 986, 104 S.Ct. 434, 78 L.Ed.2d 366 (1983). Zarnes alleged indifference to her serious medical needs, but, as discussed below, that claim has no merit and does not warrant the appointment of counsel. See Farmer, 990" }, { "docid": "17562269", "title": "", "text": "process liberty interest in the experts he sought for the sentencing phase of his murder trial. A “negative implication from mandatory language” in a statute does not necessarily create a protected interest. Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (disapproving of Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)). State law may create a liberty interest when it protects an individual against arbitrary action of government. See Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Picray v. Sealock, 138 F.3d 767, 770 (9th Cir.1998). Procedural requirements do not create a liberty interest unless they cause a “significant substantive reduction” in decision-making, see Goodisman v. Lytle, 724 F.2d 818, 820 (9th Cir.1984), or create an imperative that mandates action unless certain clearly-defined exceptions are found to apply, see Baumann v. Arizona Dep’t of Corrections, 754 F.2d 841, 844 (9th Cir.1985) (noting that the Ninth Circuit endorses a restrictive interpretation of Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979)). Chaney argues that the appointment of experts in capital cases is mandatory in Arizona, citing Arizona v. Tison, 129 Ariz. 526, 633 P.2d 335 (1981), cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982). Tison upheld the denial of a defense request for the appointment of an expert to conduct a public opinion survey to assist in jury selection in a highly publicized criminal trial, but noted that “constitutional considerations” might mandate the appointment of an expert whose findings might have some bearing on the ultimate question of guilt or innocence. See id. at 342. Arizona cases discussing the meaning of Section 13-4013(B), however, do not suggest that appointment and expenditure is mandatory. See, e.g., Arizona v. Clabourne, 142 Ariz. 335, 690 P.2d 54, 61 (1984); Arizona v. Gretzler, 126 Ariz. 60, 612 P.2d 1023, 1053 (1980). To the contrary, they hold the trial court has broad discretion to determine whether reasonable necessity has been demonstrated. See Arizona v. Williams," }, { "docid": "22642186", "title": "", "text": "clause provides prisoners two separate sources of protection against unconstitutional state disciplinary actions. First, a prisoner may challenge a disciplinary action which deprives or restrains a state-created liberty interest in some “unexpected manner.” Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Ramirez’s claimed loss of a liberty interest in the processing of his appeals does not satisfy this standard, because inmates lack a separate constitutional entitlement to a specific prison grievance procedure. Mann v. Adams, 855 F.2d 639, 640 (9th Cir.1988). Accordingly, Ramirez’s claim lacks the necessary constitutional foundation, and thus does not extend his confinement in an unexpected manner. Second, a prisoner may challenge a state action which does not restrain a protected liberty interest; but which nonetheless imposes some “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484, 115 S.Ct. 2293; Keenan v. Hall, 83 F.3d 1083, 1088 (9th Cir.1996). If the hardship is sufficiently significant, then the court must determine whether the procedures used to deprive that liberty satisfied Due Process. Sandin, 515 U.S. at 484, 115 S.Ct. 2293; Keenan, 83 F.3d at 1089. There is no single standard for determining whether a prison hardship is atypical and significant, and the “condition or combination of conditions or factors ... requires case by ease, fact by fact consideration.” Keenan, 83 F.3d at 1089. Three guideposts cited in Sandin’s analysis, however, provide a helpful framework: 1) whether the challenged condition “mirrored those conditions imposed upon inmates in administrative segregation and protective custody,” and thus comported with the prison’s discretionary authority; 2) the duration of the condition, and the degree of restraint imposed; and 3) whether the state’s action will invariably affect the duration of the prisoner’s sentence. Sandin, 515 U.S. at 486-87, 115 S.Ct. 2293; Keenan, 83 F.3d at 1089. In the present case, the District Court did not consider whether Ramirez’s disciplinary segregation imposed an atypical and significant hardship warranting additional Due Process protections during his hearing. Although we cannot determine from the present record whether his administrative segregation imposed" }, { "docid": "6277125", "title": "", "text": "which Karsky had signed and filed with the Service. The district court admitted these returns over Karsky’s objection that they were irrelevant to a determination of his state of mind when he filed his nonconforming return. Karsky argues that the district court abused its discretion in admitting the prior returns. We cannot agree. Evidence is relevant if it has a tendency to make the existence of a consequential fact more or less probable than it would be without the evidence. Fed.R.Evid. 401. The district court did not abuse its discretion in judging the probative value of the prior returns to outweigh their potentially prejudicial effect. See Fed.R.Evid. 403. Cf. United States v. Rifen, 577 F.2d 1111, 1113 (8th Cir. 1978) (evidence of defendant’s prior taxpaying history considered in weighing sufficiency of the evidence to sustain conviction under section 7203). We have carefully considered the issues raised by appellant pro se and by his counsel. We find no merit in their contentions. Accordingly, we affirm. . The Honorable Andrew W. Bogue, United States District Judge, District of South Dakota, presiding. . Karsky further argues that the district court erred in denying his motion to dismiss because of the Service’s failure to comply with notice requirements of the Privacy Act, 5 U.S.C. § 552a (1976), specifically those imposed by § 552a(e)(3)(D). This argument is without merit. On appeal Karsky has filed a pro se brief in addition to that filed by his attorney. In it Karsky urges that the evidence was insufficient to support his conviction, that the sixteenth amendment did not authorize an individual income tax, that the district court lacked jurisdiction, and that he was denied competent counsel. These contentions are devoid of merit. See, e. g., United States v. Rifen, 577 F.2d 1111 (8th Cir. 1978); Kasey v. Commissioner, 457 F.2d 369 (9th Cir.), cert. denied, 409 U.S. 869, 93 S.Ct. 197, 34 L.Ed.2d 120 (1972). We note that appellant’s court-appointed counsel has ably represented him at trial and on appeal. . On lines which required information concerning his income, deductions and filing status, Karsky entered “Object”. . Willfulness" }, { "docid": "23401997", "title": "", "text": "challenged this conclusion; in addition, he argued that the district court abused its discretion by denying his request for appointed counsel, and by refusing to subpoena all of the witnesses he had requested. Cookish also argued that it was error for the court not to rule on issues raised in the pleadings but not argued at trial, and that the court erroneously admitted certain hearsay statements. We find none of appellant's arguments persuasive, and therefore affirm the judgment of the district court. Denial of Request for Counsel. The law is well established that there is no constitutional right to appointment of counsel in a civil case. Andrews v. Bechtel Power Corporation and Local 276, Plumbers and Pipefitters Union, 780 F.2d 124, 137 (1st Cir.1985). Section 1915(d) of Title 28, however, gives the district court the discretion to appoint counsel to an indigent litigant in appropriate circumstances. We review only to determine whether the district court abused its discretion. See, e.g., Childs v. Duckworth, 705 F.2d 915, 923 (7th Cir.1983). Cf. Andrews, supra, p. 137 (abuse of discretion standard applied in reviewing denial of counsel in Title VII case). A number of courts have concluded, and we agree, that an indigent litigant must demonstrate exceptional circumstances in his or her case to justify the appointment of counsel. E.g., Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir.1984); Slavin v. Curry, 690 F.2d 446, 448 (5th Cir.1982); United States ex rel. Gardner v. Madden, 352 F.2d 792, 794 (9th Cir.1965). See also Childs v. Duckworth, 705 F.2d 915, 922 (7th Cir.1983) (no right to appointment of counsel unless the denial of proper representation would result in fundamental unfairness impinging on due process rights). Whether exceptional circumstances exist requires an evaluation of the type and complexity of each case, and the abilities of the individual bringing it. Branch v. Cole, 686 F.2d 264, 266 (5th Cir.1982). That the plaintiff has alleged sufficient facts to state a claim in the complaint does not in and of itself require the appointment of counsel. Childs v. Duckworth, supra; Maclin v. Freake, 650 F.2d 885, 887 (7th" }, { "docid": "5983766", "title": "", "text": "the defendants’ failure to respond to plaintiffs Request for Admissions, the Second Circuit has expressed a strong preference for adjudicating cases on the merits. See Brien v. Kullman Indus., Inc., 71 F.3d 1073, 1077 (2d Cir.1995); Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir.1993). Therefore, I deny plaintiffs motion for summary judgment based on defendants’ failure to respond. C. Defendants’ Motion for Summary Judgment 1. Fourteenth Amendment Claim Plaintiff argues that defendants’ actions in connection with his disciplinary hearings and SHU confinement violated his due process rights. Defendants move for summary judgment on the ground that plaintiff was not deprived of a liberty interest and, therefore, was not entitled to procedural due process protections. Alternatively, defendants argue that even if plaintiff possessed a liberty interest, he was afforded the appropriate due process. The Fourteenth Amendment to the United States Constitution prohibits, inter alia, the deprivation of liberty without due process of law. The two threshold questions on any claim for denial of procedural due process are whether plaintiff possessed a constitutionally protected liberty interest and, if so, what process was due before plaintiff could be deprived of that interest. Green v. Baum, 46 F.3d 189,194 (2d Cir.1995). In Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995), the Supreme Court held that disciplinary confinement does not implicate a liberty interest unless that confinement “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin did not, however, “create a per se blanket rule that disciplinary confinement may never implicate a liberty interest.” Miller v. Selsky, 111 F.3d 7, 9 (2d Cir.1997). Rather, district courts are required to make factual findings with respect to the conditions of confinement at issue in each case. Sealey v. Giltner, 116 F.3d 47, 52 (2d Cir.1997); Brooks v. DiFas% 112 F.3d 46, 49 (2d Cir.1997); Miller, 111 F.3d at 9. The duration of the inmate’s disciplinary confinement is relevant to this factual inquiry, as is the restrictiveness of the conditions imposed in relation to the prevailing conditions in the" }, { "docid": "15075269", "title": "", "text": "Ex. A. . Jackson 56.1 Stmt, at 6. . Jackson Mar. 31, 1998 Declaralion/Affidavit Response to Order of Judge Peck (hereinafter “Jackson Deck”) at 3-4. . Jackson alleges that the Department of Correctional Services intentionally hindered and hampered his efforts to timely serve the Article 78 petition by constantly transferring him from facility to facility. Jackson 56.1 Stmt, at 7. . 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). . 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). . 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). . The defendants did not raise the Sandin v. Conner argument until after their summary judgment motion had been fully briefed and only did so then after being ordered to address the point by the Magistrate Judge. See Order of Feb. 5, 1998. . 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). . Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir.1998) (citing Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989)). . Sandin, 515 U.S. at 483-84, 115 S.Ct. 2293 (1995) (citations omitted). . Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir.1996). . Sandin, 515 U.S. at 484, 115 S.Ct. 2293. .See Brooks v. DiFasi, 112 F.3d 46 (2d Cir.1997) (remanding for findings on the length of the disciplinary confinement, the restrictiveness of keeplock, and the prevailing conditions in administrative confinement and in the prison at large); Miller v. Selsky, 111 F.3d 7 (2d Cir.1997) (same); Sealey v. Giltner, 116 F.3d 47, 51-52 (2d Cir.1997) (remanding for specific findings on conditions of confinement); Frazier v. Coughlin, 81 F.3d 313 (2d Cir.1996) (affirming district court’s dismissal of inmate action based on extensive fact-finding that there was no showing that the conditions of confinement were dramatically different from basic conditions of his sentence); see also Samuels v. Mockry, 77 F.3d 34 (2d Cir.1996); Branham v. Meachum, 77 F.3d 626 (2d Cir.1996). Cf. Hynes v. Squillace, 143 F.3d 653 (2d Cir.1998) (per curiam) (\"in cases involving shorter periods of segregated confinement where the plaintiff has not alleged any" }, { "docid": "2484319", "title": "", "text": "This brief SHU term, therefore, was not a punishment in violation of the Eighth Amendment. See Hoptowit v. Ray, 682 F.2d 1237, 1246-47 (9th Cir.1982) (violation of the Eighth Amendment requires a sanction that is “so totally without penological justification that it results in the gratuitous infliction of suffering”) (citations omitted). Moreover, Lopez’ brief confinement in the SHU did not violate his Fourteenth Amendment due process rights. The district court properly dismissed this claim because Lopez, like any inmate, should reasonably anticipate placement in the SHU at some point during his incarceration. See May v. Baldwin, 109 F.3d 557, 565 (9th Cir.1997) (citing Toussaint v. McCarthy, 801 F.2d 1080, 1091-92 (9th Cir.1986)); see also Sandin v. Conner, 515 U.S. 472, 483-85, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). The brief time that Lopez spent in the SHU was an ordinary consequence of his confinement-it was required to facilitate his transfer from Corcoran State Prison. Lopez did not, and could not, state either an Eighth or Fourteenth Amendment claim. Thus, the district court properly dismissed his claim. C. Summary Judgment Claims. Lopez contends that the district erred by granting summary judgment on his remaining claims, including allegations that he was: (1) deprived of personal property; (2) not provided adequate medical treatment; (3) confined to a cell without a pillow or blanket; (4) deprived of outdoor exercise for 46 days; and (5) mistreated by medical personnel during transport from Corcoran State Prison. We disagree. First, Lopez contends that prison officials violated his First, Eighth and Fourteenth Amendment rights by depriving him of his personal property (i.e., personal legal materials) for approximately 19 days. The district court properly granted summary judgment on Lopez’ First Amendment claim because Lopez failed to demonstrate that the lack of access to his legal materials caused actual injury. See Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir.1989). The district court also properly granted summary judgment on Lopez’ Eighth Amendment claim because Lopez was not denied “the minimal civilized measure of life’s necessities,” a required element of an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834," }, { "docid": "2484318", "title": "", "text": "an opportunity to amend the defects in his Complaint, we affirm the district court’s dismissal. We hold, pursuant to the PLRA, that a court can no longer, at its discretion, provide an opportunity for the pro se prisoner-litigant proceeding in forma pauperis to amend deficiencies in his complaint. The PLRA provides that a court “shall dismiss” a complaint or appeal for a failure to state a claim and has therefore overruled Ninth Circuit law to the contrary. B. Dismissal of Lopez’ Claim that His Confinement to the Security Housing Unit Violated his Eighth and Fourteenth Amendment Rights. The district court properly dismissed Lopez’ claims that his second brief confinement in the Security Housing Unit (“SHU”) violated his Eighth Amendment and Fourteenth Amendment due process rights. Prison officials did not confine Lopez in the SHU to punish him, rather, they confined Lopez to facilitate his transfer to another institution. Lopez spent 15 days in the SHU, according to the district court, to protect him from assault by another inmate as he awaited transfer to another institution. This brief SHU term, therefore, was not a punishment in violation of the Eighth Amendment. See Hoptowit v. Ray, 682 F.2d 1237, 1246-47 (9th Cir.1982) (violation of the Eighth Amendment requires a sanction that is “so totally without penological justification that it results in the gratuitous infliction of suffering”) (citations omitted). Moreover, Lopez’ brief confinement in the SHU did not violate his Fourteenth Amendment due process rights. The district court properly dismissed this claim because Lopez, like any inmate, should reasonably anticipate placement in the SHU at some point during his incarceration. See May v. Baldwin, 109 F.3d 557, 565 (9th Cir.1997) (citing Toussaint v. McCarthy, 801 F.2d 1080, 1091-92 (9th Cir.1986)); see also Sandin v. Conner, 515 U.S. 472, 483-85, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). The brief time that Lopez spent in the SHU was an ordinary consequence of his confinement-it was required to facilitate his transfer from Corcoran State Prison. Lopez did not, and could not, state either an Eighth or Fourteenth Amendment claim. Thus, the district court properly dismissed his" }, { "docid": "14330330", "title": "", "text": "of Title II of the ADA. See 42 U.S.C. § 12102(2)(C) (defining “disability” to include an actual or perceived impairment). Indeed, Murdock pleaded himself out of court. See Warzon v. Drew, 60 F.3d 1234, 1239-40 (7th Cir.1995). Twice in his complaint he averred that he is not HIV-positive. In addition, he alleged that it is Taylorville policy to require HIV testing before allowing inmates to participate in the cooking classes. Thus, there was no discrimination because the testing is required of any inmate who wishes to take the class. Consequently, Murdock did not show that he has a disability or that the prison discriminated against him. He failed to state a claim under the ADA. The Fourteenth Amendment offers no assistance to Murdock. The district court correctly found that he had no liberty or property interest in attending the cooking class. See Sandin v. Conner, 515 U.S. 472, 485-87, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Higgason v. Farley, 83 F.3d 807 (7th Cir.1996) (per curiam); Garza v. Miller, 688 F.2d 480, 485 (7th Cir.1982), cert. denied, 459 U.S. 1150, 103 S.Ct. 796, 74 L.Ed.2d 1000 (1983); 20 Ill.Admin. Code § 405.20(a) (1996). Consequently, he also failed to state a claim under the Fourteenth Amendment. Murdock also claimed that the confiscation of his property — patched jeans, styrofoam, and carbon paper — violated his due process rights under the Fourteenth Amendment. The district court, however, properly dismissed this claim as well. A prisoner has adequate process where an adequate post-deprivation remedy is available to redress unauthorized confiscations of property. See Parratt, 451 U.S. at 543-44, 101 S.Ct. 1908, overruled on other grounds, Daniels, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1036 (7th Cir.1993); 705 ILCS 50⅝ (1996). Finally, the district court did not abuse its discretion in denying the motion for appointment of counsel or the motion for default judgment. See Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir.1997). The court properly concluded that Murdock was capable of presenting his case and that his claims were of doubtful merit in" } ]

[ { "docid": "22739604", "title": "", "text": "new factual allegation regarding treatment probation. Third, Stone alleged in his pro se complaint that on September 5, 2001, his computer was taken for investigation, and then returned. Later in his complaint, Stone alleged that his “computer was confiscated again to be searched” on November 27, 2001. On appeal, Stone argues that his computer was permanently confiscated, and had not been returned as of June 2003. He asserts that this permanent confiscation interferes with a constitutionally protected property interest. We do not believe the district court should have construed the complaint to mean that Stone was alleging a permanent seizure of his computer. The complaint says the computer was taken “to be searched.” This implies that the seizure was limited. It would have been simple for Stone, even as a pro se litigant, to allege that the seizure was permanent, if that is what he meant. When we say that a pro se complaint should be given liberal construction, we mean that if the essence of an allegation is discernible, even though it is not pleaded with legal nicety, then the district court should construe the complaint in a way that permits the layperson’s claim to be considered within the proper legal framework. That is quite different, however, from requiring the district court to assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint. We conclude that the district court did not err in failing to assume that Stone alleged something more than a temporary seizure of his computer for a search. Accordingly, we will not consider this new allegation regarding seizure of the computer. Confining our review to the allegations identified by the district court, we review de novo the decision to dismiss the complaint. See Burton v. Richmond, 276 F.3d 973, 975 (8th Cir.2002). The magistrate judge’s report and recommendation adopted by the district court thoroughly addressed Stone’s claims. We find no error in the dismissal, and we affirm the judgment substantially for the reasons given by the district court. See 8th Cir. R. 47B. . The Honorable Michael J." } ]

[ { "docid": "23295667", "title": "", "text": "rights by covering up Fowler’s misconduct. Andrews also asserted South Dakota state law claims of assault and battery, intentional infliction of severe emotional distress, and negligence. The district court granted summary judgment to Price, Merrill, and the city, concluding that there is no genuine issue of material fact on the § 1983 claims or on the § 1985(3) conspiracy claim. As to the state law claims, the district court concluded that they are not available because Andrews did not comply with the statutory notice requirement. See S.D. Codified Laws Ann. § 3-21-2 (1994). The district court granted partial summary judgment in favor of Fowler, dismissing the § 1985(3) conspiracy claim and the state law assault and battery claim against him. Trial against Fowler on the remaining claims is stayed pending final disposition of this appeal, in which Andrews challenges the grant of summary judgment in favor of Price, Merrill, and the city. II. “We review the district court’s grant of summary judgment de novo, applying the same standard as the district court and examining the record in the light most favorable to the nonmoving party.” Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 258 (8th Cir.1996). Summary judgment is appropriate when the record reveals that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Disesa v. St. Louis Community College, 79 F.3d 92, 94 (8th Cir.1996). See Fed.R.Civ.P. 56(c). Summary judgment is also appropriate when the plaintiff has failed to make a sufficient showing of the existence of an essential element of her ease. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). A. Andrews first contends that the district court erred by granting summary judgment to Price, Merrill, and the city on her § 1983 claim. On appeal, she contends that she has raised a material dispute of fact concerning whether these defendants failed to properly hire, train, and supervise Fowler or to investigate complaints against him. 1. We begin with Andrews’ arguments challenging the district court’s grant of summary" }, { "docid": "8896785", "title": "", "text": "also failed, specifically finding that his claim that he was disciplined in retaliation was subsumed by his wrongful termination claim. Barber appeals. II. Discussion We review a district court’s decision to grant summary judgment de novo. Wingate v. Gage Cnty. Sch. Dist., No. Sip, 528 F.3d 1074, 1078 (8th Cir.2008). Summary judgment is proper “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). “Although the burden of demonstrating the absence of any genuine issue of material fact rests on the movant, a nonmovant may not rest upon mere denials or allegations, but must instead set forth specific facts sufficient to raise a genuine issue for trial.” Wingate, 528 F.3d at 1078-79. “The mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Barber’s claims of discrimination and retaliation are properly analyzed under the same legal framework whether brought under Title VII or ACRA. See Burkhart v. Am. Railcar Indus., Inc., 603 F.3d 472, 477 (8th Cir.2010); Henderson v. Simmons Foods, Inc., 217 F.3d 612, 615 n. 3 (8th Cir.2000). Because we agree with the district court that Barber did not present direct evidence of either discrimination or retaliation, we analyze Barber’s claims under the familiar burden-shifting framework of McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817. See Wierman, 638 F.3d at 993. A. Racial Discrimination Under McDonnell Douglas, Barber must first establish a prima facie case of discrimination. A prima facie case of discrimination requires showing that he is a member of a protected group; he was qualified for his position; he suffered an adverse employment action; and the adverse action occurred under circumstances giving rise to an inference of discrimination. Id. If Barber establishes a prima facie case, the burden shifts to Cl to articulate a nondiscriminatory, legitimate basis for the challenged actions." }, { "docid": "8599560", "title": "", "text": "land-into-trust decision violated its due process rights because “[a]s a result of Superintendent Hawkins’ life-long membership in the Tribe and his repeated positions of leadership in the Tribe, Hawkins [could] not ... act as a neutral, unbiased decision maker with regard to his Tribe’s applications to take land into trust.” The BIA filed a motion for summary judgment, which the district court granted. See South Dakota, 775 F.Supp.2d at 1132, 1146. The State appeals. II. DISCUSSION A. Standard of Review “We review the district court’s grant of summary judgment de novo.” Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594, 602 (8th Cir.2011) (quoting Cole v. Homier Dist. Co., 599 F.3d 856, 864 (8th Cir.2010)). Summary judgment is ap propriate where there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Id.; see also Fed.R.Civ.P. 56(a). Whether agency action violates the Constitution is a question of law which we review de novo. See Coal for Fair and Equitable Regular tion of Docks on Lake of the Ozarks v. FERC, 297 F.3d 771, 778 (8th Cir.2002). B.. Standing The BIA argues for the first time on appeal the State lacks standing to bring its due process claims. Article III standing is a “threshold inquiry,” which must be resolved before reaching the merits of a suit. See City of Clarkson Valley v. Mineta, 495 F.3d 567, 569 (8th Cir.2007). “To show Article III standing, a plaintiff has the burden of proving: (1) that he or she suffered an injury-in-fact, (2) a causal relationship between the injury and the challenged conduct, and (3) that the injury likely will be redressed by a favorable decision.” Pucket v. Hot Springs Sch. Dist. No. 28-2, 526 F.3d 1151, 1157 (8th Cir.2008) (quoting Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir.2000) (internal quotation marks omitted)); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The State’s claim satisfies the minimum constitutional requirements for standing. States generally lack authority to regulate Indian tribes and tribe members" }, { "docid": "15659512", "title": "", "text": "PER CURIAM. Robyne Mahaney, James Mahaney, and Jackie Morton (collectively “plaintiffs”) appeal the district court’s order granting the defendants’ motions for summary judgment. See Fed.R.Civ.P. 56(c). The plaintiffs are former residents of a low income housing project in Warren County, Missouri. They allege that the defendants engaged in a conspiracy to violate their civil rights. See 42 U.S.C. § 1985(3). After conducting lengthy hearings, the district court found that the plaintiffs failed to establish the existence of a genuine issue of material fact and, accordingly, entered judgments in favor of the defendants. We review de novo a district court’s summary judgment determinations. See Amir v. St. Lowis Univ., 184 F.3d 1017, 1024 (8th Cir. 1999). The plaintiffs contend that the defendants conspired against them by building a wall, digging a ditch, engaging in racial steering practices, denying the resi dents of the project basic police protection, ordering the operator of the project to provide security for the housing project residents, filing a nuisance suit against the project, and threatening to use the zoning laws as a vehicle for closing the project. After reviewing the entire record in this case, we conclude that the plaintiffs’ claims patently lack merit. The plaintiffs advance nothing more than bare allegations and rank speculation. “Speculation and conjecture are not enough to prove that a conspiracy exists.” Mettler v. Whitledge, 165 F.3d 1197, 1206 (8th Cir.1999). Accordingly, we affirm the judgments of the district court. . The Honorable Rodney W. Sippel, United States District Judge for the Eastern District of Missouri. . The plaintiffs also allege violations of additional federal statutes and amendments to the United States Constitution. The plaintiffs failed to raise these claims in their initial brief before this court. Claims not raised in an initial brief are waived, see Stephenson v. Davenport Comm. Sch. Dist., 110 F.3d 1303, 1306-07 n. 3 (8th Cir.1997), and we generally do not consider issues raised for the first time on appeal in a reply brief. See State Auto. Mut. Ins. Co. v. Mitchell, 179 F.3d 590, 592 (8th Cir.1999). We see no reason to depart from our" }, { "docid": "4032087", "title": "", "text": "to compel the ESD to produce documents, and the court’s refusal to disqualify Judge Eisele for bias, or to levy sanctions against Hank’s. Upon our de novo review of the summary judgment record, we conclude the district court properly entered judgment in favor of Hank’s because Curd did not make out a prima facie case of retaliation or a state law outrage claim. See Rose-Maston v. NME Hosps., Inc., 133 F.3d 1104, 1107 (8th Cir.1998) (standard of review; this court affirms grant of summary judgment if evidence, viewed in light most favorable to non-moving party, shows there is no genuine issue of material fact and moving party is entitled to judgment as matter of law). To establish a prima facie case of retaliation, Curd had to show that she engaged in protected activity, she was subjected to an adverse employment action, and a causal connection existed between the protected activity and the adverse employment action. See Buettner v. Arch Coal Sales Co., 216 F.3d 707, 713-14 (8th Cir.2000) (prima facie case), cert. denied, 531 U.S. 1077, 121 S.Ct. 773, 148 L.Ed.2d 672 (2001). We do not believe Curd’s e-mail was protected activity. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 121 S.Ct. 1508, 1509-10, 149 L.Ed.2d 509 (2001) (per curiam) (to provide basis for sexual harassment retaliation claim, complaint must have been about conduct that a reasonable person could have found violated Title VII, that is, conduct that could reasonably be found to be so severe or pervasive as to alter a term or condition of employment); Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754, 755-56 (9th Cir.1997). In the alternative, we do not believe Curd met the causation requirement based on the time lapse between the e-mail and her discharge, and the lack of other evidence linking the two. See Sherman v. Runyon, 235 F.3d 406, 410 (8th Cir.2000) (timing of discharge should be evaluated in light of other evidence or lack of evidence). Further, we agree with the district court that Curd did not present evidence of extreme and outrageous conduct, as required to maintain" }, { "docid": "2374227", "title": "", "text": "in a hostile environment.” Wood wrote that she hadn’t made that specific statement but did believe SatCom to be a hostile working environment. Ro-den then handed Wood a second letter which asked her to circle “yes” or “no” if she had delivered a complaint to Riemen-snider that morning. Wood circled “yes.” Roden then terminated Wood for violating the action plan. Wood replied, “I was hoping you would terminate me.” Wood filed suit against SatCom and Ro-den on March 1, 2011, in the District of Minnesota, alleging she had been subjected to unlawful retaliation in violation of the Minnesota Whistleblower Act (“MWA”), Minnesota Human Rights Act (“MHRA”), common law of wrongful termination, and Fair Labor Standards Act (“FLSA”). On February 22, 2012, the district court granted summary judgment in favor of SatCom and Roden. It determined Wood had failed to establish a retaliation claim and that, in any event, SatCom and Wood had presented a legitimate, non-discriminatory basis for Wood’s termination. In so doing, the district court also mooted Wood’s motion to amend her complaint to add a claim for punitive damages. This appeal followed. II “We may affirm a district court’s grant of summary judgment on any basis supported by the record.” Menz v. New Holland N. Am., Inc., 507 F.3d 1107, 1110 (8th Cir.2007). “We review a district court’s decision to grant a motion for summary judgment de novo, applying the same standards for summary judgment as the district court.” Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 514 (8th Cir.2011). We have recently described the appropriate standard in considering summary judgment motions, including employment discrimination cases, as follows: Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.... On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.... The nonmovant must do more" }, { "docid": "23037834", "title": "", "text": "which they contend the district court failed to address. First, the Gibsons argue their testimony corroborates each other’s, particularly in light of the district court’s acknowledgment their claims are parallel. Second, the Gibsons claim the district court failed to account for the testimony of former AGC employee Mary Clarksenior. The Gibsons presented Clarksenior’s testimony via a deposition transcript recorded on January 4, 2006, in an unrelated case in which numerous employees alleged age and race discrimination claims against AGC. See Bell v. Am. Greetings Corp., 279 Fed.Appx. 415 (8th Cir.2008) (summarily affirming the district court’s grant of summary judgment on all claims in favor of AGC). The Gibsons assert Clarksenior worked at AGC for twenty-one years, and held positions in-eluding a checker in the packaging department and a data entry opei’ator in computer operations. The Gibsons pointed to portions of Clarksenior’s testimony where she alleged some supervisors applied different production standards to employees based on age and race, often relaxing or removing standards for white employees, while maintaining strict production standards for black employees. See J.A. at 227-28, 232-33; Tr. at 87-88, 99-100. Clarksenior further testified to differences in pay rates among black and white employees. See J.A. at 233; Tr. at 100. II “We may affirm a district court’s grant of summary judgment on any basis supported by the record.” Menz v. New Holland N. Am., Inc., 507 F.3d 1107, 1110 (8th Cir.2007). “We review a district court’s decision to grant a motion for summary judgment de novo, applying the same standards for summary judgment as the district court.” Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 514 (8th Cir.2011). We have recently described the appropriate standard in considering summary judgment motions, including employment discrimination cases, as follows: Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. The movant bears the initial responsibility of informing the district court of the basis for its" }, { "docid": "18054478", "title": "", "text": "arranging travel time, id. at 145. Holaway also testified he typically worked two to three hours each weekend on administrative work. Id. Finally, Holaway testified he typically worked sixty-two to seventy hours a week. Id. In a March 2013 deposition, Holaway testified, basing his estimate on “what [he] did on a day-to-day basis on a weekly basis and filling] in the hours,” he worked an average of sixty to seventy hours a week for the duration of his employment. Id. at 10. In a July 2013 deposition, Holaway testified, based on “mainly just recollections of [his] daily activities,” he typically worked sixty hours per week. Id. at 153. Holaway seeks damages based on his approximation he worked 60 hours per week every week of his employment. Following discovery, Stratasys moved for summary judgment, which the district court granted after finding Holaway failed to put forth evidence sufficient to show Holaway worked more than forty hours a week. Holaway now appeals. II “We review a district court’s decision to grant a motion for summary judgment de novo, applying the same standards for summary judgment as the district court.” Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 514 (8th Cir.2011). Summary judgment is appropriate “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). In considering summary judgment motions, “[t]he burden of demonstrating there are no gen uine issues of material fact rests on the moving party, and we review the evidence and the inferences which reasonably may be drawn from the evidence in the light most favorable to the nonmoving party. Davis v. Jefferson Hosp. Ass’n, 685 F.3d 675, 680 (8th Cir.2012) (internal quotation marks and citation omitted). The non-moving party must substantiate his allegations by “sufficient probative evidence [that] would permit a finding in [his] favor on more than mere speculation, conjecture, or fantasy.” Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir.2007) (alteration in original) (quotation marks and citation omitted). “Where the record taken as a whole" }, { "docid": "23137318", "title": "", "text": "actions constituted expressive conduct. It then applied the Supreme Court’s test for expressive conduct in schools, set forth in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969): school officials must justify their disciplinary decision by showing “facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.” The district court relied on this court’s decision in LaVine v. Blaine School Dist., 257 F.3d 981, 992 (9th Cir. 2001), for the proposition that school officials may take action to protect the safety of individual students even if such action interferes with the student’s ability to ex press him or herself. The district court concluded that school officials are entitled and obligated to take appropriate action to ensure the safety of their students, including warning them (however sternly) regarding the students’ legal obligation to stay in school during school hours. Having thus found that the school validly disciplined the students, the students’ actions, in this context, did not constitute protected First Amendment activity. The district court found no other Constitutional violation, and, therefore, no supervisory liability or liability under California’s Unruh Act, which both require an underlying violation of Plaintiffs’ constitutional rights. Finally, the district court held that Bennett’s actions in lecturing the students fell far short of the type of extreme and outrageous conduct required to support a claim for intentional infliction of emotional distress, and that Anthony’s act of committing suicide was both an extraordinary and unforeseeable consequence of the lecture. II. Standard of Review We review a grant of summary judgment de novo. Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir.2004) (citing United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.2003)). “We must determine, viewing the evidence in the light most favorable to ... the non-moving party, whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law.” Id. “We may affirm on any grounds supported by the record.” Id. (citing Simo v. Union" }, { "docid": "21237998", "title": "", "text": "in part settlement of a grievance she brought challenging her termination. Bogan brought suit in state court against GM and NASS alleging various claims. After the case was removed to federal district court, GM moved for summary judgment on the four claims brought against it for intentional infliction of emotional distress, negligent infliction of emotional distress, libel, and malicious prosecution. With respect to the claims for negligent and intentional infliction of emotional distress, GM made two alternative arguments. First, GM argued Missouri law required Bogan to present expert testimony showing her emotional distress was medically diagnosed and of sufficient severity to be medically significant. Bogan failed to provide GM with expert disclosures in a timely manner, and thus GM argued summary judgment was appropriate. Second, GM argued the emotional distress claims were preempted by federal labor law because they depended upon an interpretation of GM’s collective bargaining agreement (CBA). The district court agreed with GM’s arguments and granted summary judgment on both grounds. The district court also granted summary judgment on Bogan’s claims for libel and malicious prosecution. Bogan filed a timely appeal. On appeal, Bogan does not contest the dismissal, of her claims for negligent infliction of emotional distress, libel, or malicious prosecution. She challenges only the dismissal of her claim for intentional infliction of emotional distress. Bogan contends Missouri does not require medically documented damages for a plaintiff to proceed on a claim of intentional infliction of emotional distress. Bogan also contends federal la-, bor law does not preempt'her intentional infliction of emotional distress claim because its adjudication does not depend upon, or require the interpretation of, GM’s CBA. II A The first issue on appeal is whether Missouri requires medically documented damages to proceed on a claim for intentional infliction of emotional distress, an issue we review de novo. See Horstmyer v. Black & Decker (U.S.), Inc., 151 F.3d 765, 772 (8th Cir.1998) (“We review de novo a district court’s determination of how a forum state’s highest court would decide a novel legal issue or cause of action, giving no deference to the district court’s interpretation of" }, { "docid": "4391642", "title": "", "text": "employee’s work. The three managers agreed that Rahlf, Stelter and Johnson should be laid off. The three employees contend they were terminated because of their age, in violation of the ADEA and MHRA. The district court granted summary judgment to Mo-Tech. Rahlf, Stelter and Johnson appeal. This court reviews de novo a grant of summary judgment. See EEOC v. Liberal R-II Sch. Dist., 314 F.3d 920, 922 (8th Cir.2002). Summary judgment is appropriate when the evidence, viewed most favorably for the nonmovant, demonstrates no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Cherry v. Ritenour Sch. Dist., 361 F.3d 474, 478 (8th Cir.2004). “A genuine issue of material fact exists if a reasonable jury could return a verdict for the party opposing the motion.” Humphries v. Pulaski County Special Sch. Dist., 580 F.3d 688, 692 (8th Cir.2009). The ADEA prohibits discrimination against employees, age 40 and over, because of their age. 29 U.S.C. § 623(a)(1), 631(a). Under the ADEA, a plaintiff may prove age discrimination based on disparate treatment. When, as here, a plaintiff relies on circumstantial rather than direct evidence of age discrimination, the case is considered under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 515 (8th Cir.2011) (upholding the continued applicability of McDonnell Douglas after Gross v. FBL Fin. Servs., Inc., — U.S. -, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009)); Haigh v. Gelita USA, Inc., 632 F.3d 464, 468 (8th Cir.2011) (applying McDonnell Douglas, after Gross, in ADEA claim based on circumstantial evidence). Under this framework, the plaintiff must first establish a four-part prima facie case of age discrimination. See Chambers v. Metro. Prop. & Cas. Ins. Co., 351 F.3d 848, 855 (8th Cir.2003). To establish a prima facie case of age discrimination in a reduction-in-force, a plaintiff must show that (1) he is over 40 years old, (2) he met the applicable job qualifications, (3) he suffered an adverse employment" }, { "docid": "18054479", "title": "", "text": "novo, applying the same standards for summary judgment as the district court.” Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 514 (8th Cir.2011). Summary judgment is appropriate “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). In considering summary judgment motions, “[t]he burden of demonstrating there are no gen uine issues of material fact rests on the moving party, and we review the evidence and the inferences which reasonably may be drawn from the evidence in the light most favorable to the nonmoving party. Davis v. Jefferson Hosp. Ass’n, 685 F.3d 675, 680 (8th Cir.2012) (internal quotation marks and citation omitted). The non-moving party must substantiate his allegations by “sufficient probative evidence [that] would permit a finding in [his] favor on more than mere speculation, conjecture, or fantasy.” Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir.2007) (alteration in original) (quotation marks and citation omitted). “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) (quotation marks and citation omitted). The parties contest whether Holaway was properly classified as an exempt employee. We need not determine whether Holaway was improperly classified as exempt because, even assuming Holaway’s employment was subject to the overtime requirements of the FLSA, Holaway has failed to put forth evidence sufficient to demonstrate he ever worked for more than forty hours per week. For non-exempt employees, the FLSA prohibits the employment of any person “for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). An employee who sues for unpaid overtime “has the burden of proving that he performed work for which he was not properly compensated.” Anderson" }, { "docid": "23037835", "title": "", "text": "J.A. at 227-28, 232-33; Tr. at 87-88, 99-100. Clarksenior further testified to differences in pay rates among black and white employees. See J.A. at 233; Tr. at 100. II “We may affirm a district court’s grant of summary judgment on any basis supported by the record.” Menz v. New Holland N. Am., Inc., 507 F.3d 1107, 1110 (8th Cir.2007). “We review a district court’s decision to grant a motion for summary judgment de novo, applying the same standards for summary judgment as the district court.” Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 514 (8th Cir.2011). We have recently described the appropriate standard in considering summary judgment motions, including employment discrimination cases, as follows: Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. The movant bears the initial responsibility of informing the district court of the basis for its motion, and must identify those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Credibility determinations, the weighing 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" }, { "docid": "21031980", "title": "", "text": "residential community; and (3) summary disposition of the complaint was proper and the failure to decide the complaint within 45 days was harmless error. See In re J.D., 26 IDELR 501 (Vt. July 8, 1997) (“J.D. /”). Pursuant to 20 U.S.U § 1415(e)(2), J.D. appealed to the United States District Court for the District of Vermont, which affirmed for substantially the reasons stated in the administrative decision. See J.D. v. Pawlet Sch. Dist., No. 97-CV-290, slip op. (D.Vt. Sept. 17, 1999) (“J.D. II”). II. DISCUSSION A. Standard of Review Whether the district court accurately applied the statutory and regulatory terms in the IDEA and the Vermont implementing regulations to J.D.’s educational and emotional history is a mixed question of law and fact, which we review de novo. See, e.g., Muller v. Committee on Special Educ., 145 F.3d 95, 102 (2d Cir.1998) (reviewing de novo IDEA case that required application of statutory and regulatory definitions); Heather S. v. Wisconsin, 125 F.3d 1045, 1053 (7th Cir.1997) (same); Yankton Sch. Dist. v. Schramm, 93 F.3d 1369, 1373 (8th Cir.1996) (plenary review of disabled student’s eligibility for IDEA services). We also review de novo all other issues on which the district court granted summary judgment. See, e.g., De-Bord v. Board of Educ., 126 F.3d 1102, 1104 (8th Cir.1997) (plenary review of summary judgment dismissing § 504 claim); cf. Stone v. City of Mt. Vernon, 118 F.3d 92, 99 (2d Cir.1997) (reviewing de novo summary judgment dismissing a § 504 claim in the context of alleged employment discrimination). B. The Substantive IDEA Claim We begin with the substantive IDEA claim because its resolution will facilitate our decision as to the procedural IDEA claim. The substantive claim presents a matter of first impression: whether an academically gifted child with an emotional-behavioral disability is eligible for special education under the IDEA and the corresponding Vermont regulations. We agree with the district court that he is not. 1. The IDEA The IDEA was enacted, in part, “ ‘to assure that all children with disabilities have available to them ... a free appropriate public education which emphasizes special education" }, { "docid": "16987908", "title": "", "text": "an atmosphere violates the Act.... That the racial insults were not directed to [white] Charging Party, but to his fellow employees, renders the act no less a violation. Indeed, Charting Party was so offended by the epithet and the attitude underlying its use that he determined to resign his employment. That Charging Party was '‘aggrieved” in fact and as a matter of law is well settled. EEOC Decision No. 71-909, 25 Ohio App.2d 141, 267 N.E.2d 814, 3 Fair Empl.Prac.Cas. (BNA) at 269-70 (1971). . The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota. . Hocevar also brought claims of quid pro quo harassment in violation of Title VII, and state law claims of intentional infliction of emotional distress, breach of contract, and wrongful discharge. The district court dismissed Amundsen as a party. The district court also dismissed the quid pro quo claim on summary judgment. After dismissal of the Title VII claims, the district court declined to exercise supplemental jurisdiction over the state law claims. At oral argument, Hoce-var's counsel seemed to imply that Hocevar did not wish to pursue an appeal of the dismissal of her quid pro quo claim. Regardless, we affirm the district court’s well-reasoned opinion with regard to the dismissal of the quid pro quo allegation. Hocevar does not appeal the dismissal of Amundsen as a party or the district court’s decision to not exercise supplemental jurisdiction over the state law. claims. . We review the district court’s grant of summary judgment de novo, and will affirm if the evidence, viewed in the light most favorable to Hocevar, shows that there is no genuine issue of material fact and that Purdue is entitled to judgment as a matter of law. See Austin v. Minnesota Mining and Mfg. Co., 193 F.3d 992, 994 (8th Cir.1999) (standard of review). . The company official who called Hocevar a \"bitch” later called to apologize for his comment. . This was the same company official who danced with Hocevar two years earlier. .Because Hocevar has failed to prove the elements of her claim, we need" }, { "docid": "2374228", "title": "", "text": "add a claim for punitive damages. This appeal followed. II “We may affirm a district court’s grant of summary judgment on any basis supported by the record.” Menz v. New Holland N. Am., Inc., 507 F.3d 1107, 1110 (8th Cir.2007). “We review a district court’s decision to grant a motion for summary judgment de novo, applying the same standards for summary judgment as the district court.” Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 514 (8th Cir.2011). We have recently described the appropriate standard in considering summary judgment motions, including employment discrimination cases, as follows: Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.... On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.... 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 non-moving party, there is no genuine issue for trial. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.2011) (en banc) (internal quotation marks and citation omitted). To clarify, “[although the burden of demonstrating the absence of any genuine issue of material fact rests on the movant, a nonmovant may not rest upon mere denials or allegations, but must instead set forth specific facts sufficient to raise a genuine issue for trial.” Wingate v. Gage Cnty. Sch. Dist., No. 31, 528 F.3d 1074, 1078-79 (8th Cir.2008). “The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242," }, { "docid": "22465979", "title": "", "text": "be enjoined to grant her daughter “the same title, honors, and obligations as the student elected to the position, including the privilege of speaking as a class officer at graduation.” Doninger II, 527 F.3d at 43. After extensive development of the factual record, the district court denied the request for an injunction based on Doninger’s failure to show likelihood of success on the merits. See Doninger I, 514 F.Supp.2d at 218. On appeal, this Court affirmed. Doninger II, 527 F.3d 41. After Avery Doninger graduated from high school, she was substituted for her mother as plaintiff. Although her request for an injunction has been mooted by her graduation, Doninger now seeks damages for the alleged violation of her constitutional rights. The district court entertained cross-motions for summary judgment, and on January 15, 2009, denied Doninger’s motion and granted Defendants’ motion in part and denied it in part. See Doninger v. Niekoff (“Doninger III ”), 594 F.Supp.2d 211 (D.Conn.2009). It subsequently denied motions for reconsideration. Doninger v. Niehoff, No. 3:07-cv-1129, 2009 WL 763492 (D.Conn. Mar. 19, 2009). Defendants appealed the partial denial of qualified immunity and, as previously noted, Doninger was granted leave to appeal the district court’s order partially granting summary judgment to Defendants. DISCUSSION The standard of review in these appeals from a partial grant and partial denial of summary judgment is de novo. McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir.2009). Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, “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); see also McBride, 583 F.3d at 96. I. First Amendment Claims As we did in Doninger II, we begin with some basic principles of First Amendment law. While students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” Tinker v. Des Moines Indep. Cmty. Sch. Disk, 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), the constitutional rights of students in public" }, { "docid": "17719764", "title": "", "text": "civil rights suit under 42 U.S.C. § 1983, alleging, relevant to this appeal, conspiracy (Count II), excessive force (Count III), false arrest (Count V), and state-law claims of intentional and negligent infliction of emotional distress (Counts VI and VII), personal injuries (Count VIII), intentional infliction of harm (Count IX), loss of consortium (Count X), and damage to reputation (Count XIII). They further sought punitive damages and attorneys’ fees (Counts XIV and XV). The district court ultimately granted the defendants’ motion for summary judgment. This appeal followed. II. Anthony argues that the district court failed to consider the evidence in the light most favorable to him and improperly analyzed his false-arrest claim as a Terry stop. He disputes that there was probable cause for his arrest, and he argues that the defendants were not entitled to qualified immunity on his claims. He also argues, for the first time, that the initial encounter with Thomason constituted an illegal arrest. Anthony also challenges the district court’s dismissal of his excessive-force claim, because there was no basis for the use of any force when the underlying arrest was illegal. We review de novo the district court’s grant of summary judgment. Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir.2010). Summary judgment is proper “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). “We draw all factual inferences in a light most favorable to the nonmoving party.” Shiver, 549 F.3d at 1343. Where, as here, there is a videotape of the incident, we may “view[ ] the facts in the light depicted by the videotape.” Scott v. Harris, 550 U.S. 372, 381, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). We do not consider arguments raised for the first time on appeal. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir.2004). And arguments raised below but not raised on appeal are deemed abandoned. Holland v. Gee, 677 F.3d 1047, 1066 (11th Cir.2012) (explaining that issues not raised in the initial" }, { "docid": "7772997", "title": "", "text": "action by the defendants to deny inmates access to Cermak. Nor has he alleged knowledge of anything the defendants did or said to prevent him from receiving adequate medical care. B. District Court Proceedings The district court determined that Mr. Boyce had failed to present sufficient evidence to withstand summary judgment with regard to Lieutenants Moore and Ma-lek. Mr. Boyce had relied on the existence of three notations in the jail logbooks. He contended that these entries established knowledge on the part of Lieutenants Moore and Malek as to his dangerous predicament. The district court, however, found no evidence that these defendants were required to review the logbooks or that they in fact did review them. Noting that Mr. Boyce had not presented any evidence that Lieutenant Malek's actions were unreasonable, it concluded that Lieutenant Malek's transfer of Mr. Boyce from Tier C-4 to Tier H-i did not constitute deliberate indifference. R.100 at 13-14. Finally, the district court granted summary judgment in favor of the Executive Director because it could not find that the absence of protective custody was a per se constitutional violation, nor could it find a pattern of violations through which to impute knowledge to CCDOC. R.100 at 16. II DISCUSSION We review the district court's decision to grant summary judgment de novo. See Mauler v. Bayfield County, 309 F.3d 997, 1000 (7th Cir.2002); O'Neal v. City of New Albany, 293 F.3d 998, 1003 (7th Cir.2002). The Eighth Amendment requires prison officials to \"`take reasonable measures to guarantee the safety of the inmates'\" and to protect them from harm at the hands of others. Farmer v. Brennan, 511 U.S. 825, 832-33, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)); see Henderson v. Sheahan, 196 F.3d 839, 844 (7th Cir.1999) (noting that the Eighth Amendment requires states to \"ensure that inmates receive adequate food, clothing, shelter, protection, and medical care\" (citation omitted)). Liability must be predicated ~on a finding of \"`deliberate indifference' to inmate health or safety.\" Farmer, 511 U.S. at 834, 114 S.Ct." }, { "docid": "23337654", "title": "", "text": "records revealed that in 1996, Thomas admitted to Dr. Judy she was “possibly depressed.” Dr. Judy testified in his deposition he did not remember reviewing Thomas’s 1996 medical records before writing his August 2001 letter to Dr. Harris, but instead adopted Thomas’s suggestion the Prozac and Zoloft medications were prescribed for fatigue because it did not conflict with his own recollection. Furthermore, the only mention of information related to Thomas’s “infertility” was her previous tubal ligation and subsequent reversal, and Thomas’s intermittent attempts to get pregnant. Thomas had disclosed her prior tubal ligation and reversal surgeries to Dr. Harris on her medical history questionnaire, and Thomas had discussed with Hargarten and her other Juvenile Unit co-workers Thomas’s desire to have children, her fertility treatments, and her attempts to become pregnant. Thomas filed suit against Jim Corwin, KCPD Chief of Police; KCPD; and five members of the Board of Police Commissioners (collectively, the defendants), alleging disability discrimination, age discrimination, gender discrimination, retaliation, invasion of privacy, and intentional and negligent infliction of emotional distress. The district court dismissed the emotional distress claims with prejudice and also dismissed KCPD as a defendant. The district court granted summary judgment to the defendants on Thomas’s remaining claims. Thomas appeals. II. DISCUSSION A. Standard of Review We review de novo the grant of a motion for summary judgment, applying the same standards as the district court. Samuels v. Kan. City Mo. Sch. Dist., 437 F.3d 797, 801 (8th Cir.2006). If the evidence, viewed in the light most favorable to Thomas and giving her the benefit of all reasonable inferences, shows there are no genuine issues of material fact and the defendants are entitled to judgment as a matter of law, then summary judgment is appropriate. Fed.R.Civ.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, we do not weigh the evidence, make credibility determinations, or attempt to discern the truth of any factual issue." } ]

[ { "docid": "22046879", "title": "", "text": "Mr. Justice Bradley delivered the opinion of the court. He stated the facts in the foregoing language, and continued: ¥e have to decide the question, whether a discharge in bankruptcy under the act of 1867 operates to discharge the bankrupt from a debt or obligation which arises from his appropriating to his own use collateral securities deposited with him as security for the payment of money or the performance of a duty, and his failure or refusal to return the same after the money has been paid or the duty performed? or, whether a debt or obligation thus incurred is within the meaning of the 33d section of said act § 5117 Rev. Stat., which declares that “ no debt created by the. fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any* fiduciary character, shall be discharged under this act ? ” The-New York courts decided that the effect of the discharge in bankruptcy was to discharge the debt, holding that the debt was not created by fraud, nor by embezzlement, nor whilst the bankrupt was acting in a fiduciary character. The question first came up for discussion in the case upon an order for arresting the defendants, on a charge that the debt was fraudulently contracted. After obtaining their discharge in bankruptcy, the defendants moved to vacate the order of arrest, which motion the Superior Court denied; but the Court of Appeals reversed this judgment, and granted the motion. The opinion of the court on this occasion is reported in 77 N. Y. 427, and 'was referred to as the ground of judgment when the case, finally' came up on its merits. The question, so far as relates to the principle involved, is not a new one. It came up for consideration under the bankrupt act of 1841, which withheld the benefits of the act from all debts “ created by the bankrupt in consequence of a defalcation as a public officer, or as executor, administrator, guardian, or trustee, or while acting in any other fiduciary capacity; ” 5" } ]

[ { "docid": "7575054", "title": "", "text": "by the wife, or to be given to her in consideration of the marriage or to belong to her at the time of the marriage, is paraphernal.” The state law accords to the wife a privilege upon the movable property of her husband for the repayment of her dotal claims (R. C. C. art. 3215), but this does not extend to claims for paraphernal funds or property. Stafford v. Dunwoodie, 3 Rob.. (La.) 276; Stafford v. Mead, 9 Rob. (La.) 142; Friend v. Fenner, 2 La. Ann. 789; Succession of Richardson, 14 La. Ann. 1. I think it clear, however, from the article of the Code last above quoted, that the claim in this instance is for paraphernal funds; hence the law affecting the dotal claims need not be considered. As bearing upon the claim of a privilege, I quote also the following articles of the Revised Civil Code: “Art. 3311. Legal or Tadt Mortgages. The law alone in certain cases gives to the creditor a mortgage on the property of his debtor, without it being requisite that the parties should stipulate it; this is called legal mortgage. “It is called also tadt mortgage, because it is established by the law without the aid of any agreement.” “Art. 3312. Id. Striati Juris. No legal mortgage shall exist, except in the cases determined by the present Code.” “Art. 3319. Id. In Favor of Wife. The wife has a legal mortgage on the property of her husband in the following eases: “1. For the restitution of her dowry, and for the reinvestment of the dotal property sold by her husband, and which she brought in marriage, reckoning from the celebration of the marriage. «2 * * * “3. For the restitution or reimbursement of her paraphernal property.” “Art. 3320. Present and Future Property Affected by. The creditor who has a legal mortgage, except in the ease where certain specific property is subjected to it, may exercise his right on all the immovables belonging to his debtor, and on such as may subsequently belong to him.” “Art. 3329. Becordation Fives Bank of Mortgage." }, { "docid": "22876718", "title": "", "text": "not a claim provable against their estates in bankruptcy. Rev. Stat. §§ 5067-5072, inclusive, 5117, 5119. 2. But had the plaintiffs waived their right to claim damages specifically for the deceit practised upon them, and made a jclaim against the estate of the bankrupts based wholly upon their legal obligation to save plaintiffs harmless on account of their being the makers and indorsers of the notes in question, or if the present action had been based upon that obligation, and not upon the fraud committed by defendants, it would not follow that the defendants would be protected by their discharges in bankruptcy ; for, the statute expressly declares that a discharge is subject, even in respect of claims provable in bankruptcy, to the limitation that no debt created by the fraud'.oí the bankrupt shall be discharged by the proceedings in bankruptcy, and that a debt ■so created may be proved, and the dividend thereon shall be a payment on account of such debt. Rev. Stat. §§ 5117, 5119. It is, therefore, clear that, whether the claim asserted by plaintiffs is regarded as one arising out of the deceit or fraud of the defendants, or as a debt created by their fraud, the discharges in bankruptcy do not constitute a defence. The only other question to be determined is, whether the defendants, John B. Holland and Joseph Holland, can be held liable for the false and fraudulent representations of their partner, it being conceded that they were not made by their direction nor with their knowledge. Whether this action be regarded as one to recover damages for the'deceit practised upon the plaintiffs, or as one to recover the amount of a debt created by fraud upon the part of Strang, we are of opinion that his fraud is to be imputed, for the purposes of the action, to all the members of his firm. The transaction between him and the plaintiffs is to be deemed a partnership transaction, because, in addition to his representation that the notes were for the benefit of his firm, he had, by virtue of his agency" }, { "docid": "12935255", "title": "", "text": "said that it must “ regard the balance of the debt due by the husband to- his wife as extinguished by the discharge in bankruptcy, and that consequently she had no longer alright to issue an execution; that any property acquired by him afterwards was free from any claim on her part; and that, in 'truth, the community had ceased to exist.” . Alling v. Egan, 11 Rob. (La.) 244, 245. Such being the nature of the liability of the husband to the wife for her paraphernal property, under the law of Louisiana, it was clearly provable by her against him as. a debt under the bankrupt act of the United States. Rev. Stat. § 5067; In re Bigelow, 3 Benedict, 198; In re Blandin, 1 Lowell, 543; In re Jones, 6 Bissell, 68, 78. It is equally clear that it has none of the elements of a trust, certainly not of such a technical trust as to m'ake it a fiduciary debt, within the meanitfg of that act; and that, consequently, it was barred by his discharge in bankruptcy. Rev. Stat. §§5117, 5119; Hennequin v. Clews, 111 U. S. 676; Upshur v. Briscoe, 138 U. S. 365. The remaining question is -whether the appellees can avail themselves of that discharge. The dates bearing upon this question are as follows : The marriage contract, out of which the plaintiff’s mortgage arose, was made in 1868, and recorded in 1870. The husband’s discharge in bankruptcy was obtained in 1877 from all debts due at the commehcement of proceedings in 1876, including his liability to his wife. She had, as yet, no mortgage on these lands, because they were not his property. After this, he purchased the lands, and, in 1881, mortgaged them to the appellees. In 1887, the wife sued the husband and' obtained a judgment for a separation of property, declaring a mortgage in her favor as of the date of the recording of the marriage contract; and upon that judgment took out execution, under which the sheriff levied upon the lands and sold them to her. Under these circumstances," }, { "docid": "23684310", "title": "", "text": "given to secure a debt for his benefit, in which she renounces formally all her rights, privileges, and mortgages on the prop? erty, ceding and transferring them to her husband’s creditor, was a contract entered into by the wife conjointly with her husband, binding herself for his debt, which, being prohibited by article 2412, was void.” The court in their opinion say, — “ The counsel for the appellant, in support of the .position, that the agreement on the part of the' wife to renounce her claims on the mortgaged property is null and void, relies upon article 2412.” After citing the article, they observe, — “ The question thus presented is to be decided by us without reference to the laws of Toro, which have no longer here the force of laws, and independently of former decisions of this court while guided by the ' Spanish jurisprudence; but we are called on to say what, in our opinion, is the law of the land on this subject, as established by the code standing by itself.” On a rehearing of the above case, the court held that the' wife was the surety of the husband, within “• the sense of article 2412, and that the act was consequently void.” And it appears that the. legislature, being dissatisfied with the decision, passed an act declaring “ that married women aged twenty-one years shall have the right to renounce, in favor of third persons, dotal, paraphernal, and other rights,” in a certain form, &c. In the case of E. Monfort v. Her Husband, 4 Robinson, 453, it was held, “ that the purchaser of dotal property, legally alienated, has nothing to do with- the investment of the proceeds, and that the husband alone has the administration of the dowry. If he misapplies it, there is a lien of the wife on his property.” The law of Toro declared, — “ The wife shall not be bound in any thing, unless it . shall be proved that the debt was converted to her benefit.” In reference to this provision, the court said, in" }, { "docid": "2950108", "title": "", "text": "the court. By the law of England, which is our law in this respect, except so far as it has been changed by statute, the wife’s right of dower is no part -of the estate of the husband, and is not affected by proceedings in bankruptcy against him. Squire v. Compton, Vin. Ab. Dower, G. pl. 60; Smith v. Smith, 5 Ves. 189. If it is barred in this case, it must be either by force of the provisions of the recent Bankrupt Act, or by reason of the nature of the right of dower under the local law of Pennsylvania. But, under the provisions of the Bankrupt Act, all that passes to the assignee by the assignment in bankruptcy, or that can be sold by direction of the court, is property or rights of the bankrupt, or property conveyed by the bankrupt in fraud of creditors, unless indeed a person holding' a mortgage or pledge of, or hen upon, property of the bankrupt elects- to release the same. Rev. Stat. §§ 5044-5046, 5061-5066, 5075; Stat. 22d June, 1874, c. 390, § 4; Donaldson v. Farwell, 93 U. S. 631; Dudley v. Easton, 104 U. S. 99, 103. The law of Pennsylvania as to the liability of the right of dower to be taken for the debts of the husband is certainly in some respects peculiar. An act passed in 1705, ££for taking lands in execution for payment of debts,” provided tliat all lands of a debtor, having no sufficient personal estate, should be hable to be seized and sold upon judgment and execution obtained against him ; and that in case of default in payment of any debt secured by mortgage of real estate, the mortgagee might by writ of scire faciasobtain execution to be levied by sale of the mortgaged premises. 1 Dali. Laws of Penn. 67-71. Another act passed in the same year, “for the better settling of intestates’ estates,” while recognizinga right of dower in the widow, “ which dower she shah hold as tenants in dower do in England,” authorized the administrator, in case of" }, { "docid": "13575224", "title": "", "text": "the purely domestic relations implied in the marital contract. If the statutes of Texas as construed by its courts not only give the wife a right to her personal earnings free from her husband’s debts, but clothe her with the power to contract generally with reference to them, no reason appears why she cannot make a valid contract about them with her husband so as to give her a provable claim in bankruptcy. In Texas, prior to the passage in 1913 (Acts 33d Leg. c. 32) and following of the enabling acts withdrawing the wife’s earnings and the proceeds of her separate property from liability for community debts, she had no contractual power as to any part of the community property. On the other hand, as to her separate property, the powers of contract which had been conferred upon her by the Legislature were large and ample. In Sparks v. Taylor, 99 Tex. 424, 90 S. W. 489, 6 L. R. A. (N. S.) 381, Judge Brown said: “The eases cited, as well as others which might be referred to, establish as the law in this state these propositions: “(1) The husband may enter into contracts with his wife concerning their property rights. He may purchase land from her and may sell land to her. He may borrow money from her, and he may pay the debt, just as he would to any other creditor. He may become her trustee or agent for the investment of funds which belong to her, the same as he may assume those relations to any other person, in fact, his power to contract with her seems to be limited only by her incapacity to convey land to him because of the fact that he cannot join her in the conveyance. (2) A married woman may, when joined by her husband, sell or mortgage her separate property. She may, with her separate funds, buy real or personal property from her husband or another, which will be her separate estate. She may borrow money, and by mortgage bind her separate estate for its payment, or she" }, { "docid": "959356", "title": "", "text": "issued thereon or for the collection thereof, which recital shall be conclusive as against the husband and wife and authorize the enforcement of such judgment or decree as against all property subject to the satisfaction thereof by virtue of this act.” The parties are not in disagreement that what the United States obtained was a joint or a Quasi-in-Rem judgment susceptible of being satisfied only out of property owned by defendants-appellants as tenants by the entirety in accordance with the statutes, supra. A tenancy by the entirety in real property is an estate in land accruing to husband and wife wherein both are seized of the entirety so that neither can dispose of any part without the consent of the other, nor may either subject it to payment of his or her individual debts. Collier on Bankruptcy, 14th Edition, Vol. 4, Sec. 70.17, p. 1035. In 41 C.J.S. Husband and Wife § 34, p. 458, it is described as “a peculiar and anomalous estate.” Each (husband and wife) is seized per tout et non per my; there is but one estate. Whether or not an estate by the entirety has been created in property depends upon state law. Collier on Bankruptcy, Vol. 4, p. 1039. The contention of defendants-appellants is that the liability of the husband was discharged under Section 35 of Title 11, United States Code Annotated. That section provides that a discharge in bankruptcy releases the bankrupt from all of his provable debts whether allowable in full or in part, except six specifically defined classifications within none of which is it provided that debts contracted jointly with the wife are exempted. Counsel for defendants-appellants contend that the discharge section of the bankruptcy statute would be rendered a nullity by any decision of the Michigan Court which would, in effect, exempt the bankrupt from the protection of his discharge; that such a ruling would thereby subordi nate federal law to that of a state. Counsel for the plaintiff-appellee concedes that under the law of Michigan no interest of the bankrupt husband in property owned by him and his wife" }, { "docid": "12935251", "title": "", "text": "general rule, contracts of sale between husband and wife are prohibited ; but one of the exceptions to this rule is that he may transfer property to her in settlement of claims arising out of her separate property. Civil Code, art. 2446 (2421). The wife has no estate of dower in the lands of her husband, nor any right corresponding or equivalent to dower at common law. The decision in Porter v. Lazear, 109 U. S. 84, therefore, has no application to this case. The liability of the husband to the wife, for her separate ■property received by him under the marriage contract, is in the nature of a debt secúred by mortgage of his lands, and may be enforced by her by direct suit against him. Although the wife cannot maintain an action, in relation either to her dotal or to her paraphernal property, against a third person, unless authorized by her husband, or, if he fails tó do it, by a judge, yet she may, with the authorization of the court in which she brings the action, sue her husband “ for the separation of property,' or ■ for the restitution and enjoyment of her paraphernal'property.” Code of Practice, arts. 105-108. The object of the provision requiring the wife to obtain -¡the authorization of the court is to protect the husband against vexatious and unadvised family suits, and the want of such authorization is waived if .the husband accepts service-without taking the objection. Le Blanc v. Debroca, 6 La. Ann. 360; Spivey v. Wilson, 31 La. Ann. 653. The wife may, at any time during the marriage, sue the husband for a separation of property, “ when the disorder of his affairs induces her to believe that his estate may not be' sufficient to meet her rights and claims.” Civil Code, art. 2425 (2399). Consequently, a transfer of property; or a confession of judgment^ by an insolvent - husband to his wife, in settlement of her claim's, is good , against his creditors. Lehman v. Levy, 30 La. Ann. 745, 750 ; Levi v. Morgan, 33 La. Ann." }, { "docid": "12935257", "title": "", "text": "by the law of Louisiana, the debt of the husband to the wife was extinguished by his discharge in bankruptcy; and thereupon her mortgage, which was but a security for that debt, disappeared with it, and could not attaeh to these lands, upon his subsequently purchasing.them; and the appellees, claiming as his creditors, under the mortgage from him to them, were entitled to set up his discharge in bankruptcy against any lien claimed by her upon the lands. Civil Code, arts. 3278 (3215), 3285 (3252), 3166.(3129); Alling v. Egan, 11 Rob. (La.) 244 ; Upshur v. Briscoe, 37 La. Ann. 138, 153, and 138 U. S. 365, 379; Larthet v. Hogan, 1 La. Ann. 330; New Orleans Co. v. Recorder of Mortgages, 27 La. Ann. 291; Klotz v. Macready, 44 La. Ann. 166. Neither the omission of the husband to plead his discharge in bankruptcy in his wife’s-suit against him, nor the judgment recovered by her in that suit, can affect the title of the appellees (who were not parties to that suit) under the previous mortgage to them. Ddcree affirmed. Me. Justice Shieas, not haying been a member of the court when this case was argued, took no part in its decision." }, { "docid": "1135774", "title": "", "text": "Mr. Poolman, pursuant to a separation agreement, had agreed to pay child support, to deed his interest in the home to his wife, and to make the house payments. Mrs. Poolman was compelled to borrow money to make the house payments when Mr. Poolman defaulted on his obligation. She obtained a judgment and sought to enforce it through garnishment. Mr. Pool-man filed a bankruptcy petition and scheduled the judgment against him as an unsecured provable debt. He obtained a discharge of his provable debts and commenced an ancillary proceeding in bankruptcy requesting release of the garnishment of his wages. Ultimately, the Eighth Circuit Court of Appeals held that the judgment debt of the bankrupt to his former wife was nondischargeable because it was a liability for “maintenance or support” within the meaning of Section 17 of the former Bankruptcy Act. Quoting from the opinion— It is safe to say that the obligation to maintain and support a family includes the obligation to keep a roof over their heads. It is obvious that that is what the bankrupt undertook to do when he agreed to keep up the installment payments on the trust deed upon the home in which his divorced wife and his children were to live. Poolman v. Poolman, 289 F.2d 332, 335 (8th Cir.1961). The Eighth Circuit, as reflected in the quotation, considered the purpose and substance of the bankrupt’s obligation in Pool-man in concluding that the indebtedness in question was nondischargeable. Furthermore, the obligation was directly associated with the support of Mrs. Poolman, since she had been forced to borrow money to make the house payments after the default of the bankrupt. Cf. In re Miller, 17 B.R. 773 (Bkrtcy .N.D.Ohio 1982). In re Thomas, 21 B.R. 571 (Bkrtcy.E.D.Pa.1982), involved a property settlement agreement in which the debtor agreed to convey his interest in the marital residence to his wife and to make payments to discharge the second and third mortgages against the property. The debtor listed the mortgage' obligations when he filed his bankruptcy petition. Judge King noted that evidence of the “relative financial needs and" }, { "docid": "12935253", "title": "", "text": "532; Thompson v. Freeman, 34 La. Ann. 992, Beside the power which the wife has to sue her husband for a separation of' property when the disorder of his affairs endangers her rights, she has the absplute right, at any time, and at her own discretion, without regard. to the condition of the husband’s affairs, to resume the sole possession and administration of her paraphernal property, and to maintain a suit against him for that purpose. Civil Code, arts. 2384 (2361); 2385 (2362), 2387 (2364), 2391 (2368); Brooks v. Wiggington, 14 La. Ann. 687; Joly v. Weber, 35 La. Ann. 806, 809, and cases cited; Burns v. Thompson, 39 La. Ann. 377. When there is a community'of acquets and gains, the fruits and income of the wife’s paraphernal property administered by the husband belong to the conjugal partnership or com munity. Civil Cpde, arts. 2386 (2363), 2402 (2371). The husband may appropriate such fruits and income to his own use. Wimbish v. Gray, 10 Rob. (La.) 46; Miltenberger v. Keys, 25 La. Ann. 287. He is not liable to her for neglecting to collect them. Wallace v. McCullough, 20 La. Ann. 301. Nor is he liable for interest on the debt to his wife, except, after she has obtained judgment against him. Burns v. Thompson, 39 La. Ann. 377. The debt of the husband to the wife is so like an ordinary debt, that it may be seized and sold on execution against her. Hawes v. Bryan, 10 Louisiana, 136. And in proceedings in insolvency in inwlium, against the husband, under a statute of the State, she may prove and Vote upon her paraphernal claim, even if she has not renounced the community of acquets and gains. Planters' Bank v. Lanusse, 10 Martin, 690, and 12 Martin, 157. Where, after a wife had recovered a judgment of separation of property, and an execution thereon had been partly satisfied, the husband went into bankruptcy and obtained a discharge, the Supreme Court of Louisiana meld that her debt was barred, and could not be enforced against property subsequently acquired by him; and" }, { "docid": "22375235", "title": "", "text": "civil service, to order a portion of his pay to be applied for the benefit of his creditors in bankruptcy. In re Ward, (1897) 1 Q. B. 266. But the question now before us is not whether his pay can be reached in bankruptcy, but whether he is entitled to a discharge from the arrears of alimony due to his former wife. The Bankrupt Act of 1898, provides in §1, that a “discharge ” means “ the release of a bankrupt from all his debts which are provable in bankruptcy, except such as are excepted by this act; ” and includes, in § 63, among the debts which may be proved against his estate, “ a fixed liability, as evidenced by a judgment or an instrument in writing, absolutely owing,” at the time of the petition in bankruptcy, whether then payable or not, and debts “ founded upon a contract, expressed or iim plied.” 30 Stat. 541, 563. Alimony does not arise from any business transaction, but from the relation of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife. The general obligation tp support is made specific by the decree of the court of appropriate jurisdiction. Generally speaking, alimony may be altered by that court at any time, as the circumstances of the parties may require. The decree of a court of one State, indeed, for the present payment of a- definite’sum of money as alimony, is a record which is entitled to full faith and credit in another State, and may therefore be there enforced by suit. Barber v. Barber, (1858) 21 How. 582; Lynde v. Lynde, (1901) 181 U. S. 183. But its obligation in that respect does not affect its nature. In other respects, alimony cannot ordinarily be enforced by action at law, but only by application to the court which granted it, and subject to the discretion of that court. Permanent alimony is regarded rather as a portion of the husband’s estate to which the wife is equitably entitled, than" }, { "docid": "12935254", "title": "", "text": "is not liable to her for neglecting to collect them. Wallace v. McCullough, 20 La. Ann. 301. Nor is he liable for interest on the debt to his wife, except, after she has obtained judgment against him. Burns v. Thompson, 39 La. Ann. 377. The debt of the husband to the wife is so like an ordinary debt, that it may be seized and sold on execution against her. Hawes v. Bryan, 10 Louisiana, 136. And in proceedings in insolvency in inwlium, against the husband, under a statute of the State, she may prove and Vote upon her paraphernal claim, even if she has not renounced the community of acquets and gains. Planters' Bank v. Lanusse, 10 Martin, 690, and 12 Martin, 157. Where, after a wife had recovered a judgment of separation of property, and an execution thereon had been partly satisfied, the husband went into bankruptcy and obtained a discharge, the Supreme Court of Louisiana meld that her debt was barred, and could not be enforced against property subsequently acquired by him; and said that it must “ regard the balance of the debt due by the husband to- his wife as extinguished by the discharge in bankruptcy, and that consequently she had no longer alright to issue an execution; that any property acquired by him afterwards was free from any claim on her part; and that, in 'truth, the community had ceased to exist.” . Alling v. Egan, 11 Rob. (La.) 244, 245. Such being the nature of the liability of the husband to the wife for her paraphernal property, under the law of Louisiana, it was clearly provable by her against him as. a debt under the bankrupt act of the United States. Rev. Stat. § 5067; In re Bigelow, 3 Benedict, 198; In re Blandin, 1 Lowell, 543; In re Jones, 6 Bissell, 68, 78. It is equally clear that it has none of the elements of a trust, certainly not of such a technical trust as to m'ake it a fiduciary debt, within the meanitfg of that act; and that, consequently, it was barred" }, { "docid": "22876717", "title": "", "text": "that as Strang & Holland Bros, were under a legal obligation, apart from any responsibility for the alleged fraudulent representations by Strang, to pi-otect the plaintiffs against liability on the notes elated in March, the latter cohld have made a claim against the estates of the several bankrupts, for such amounts as they were compelled to pay on account of their being accommodation makers and indorser’s ; consequently, it is- argued, the defendants are released, by their respective discharges in bankruptcy, from the present claim for damages. To this proposition there are two answers: 1. While the plaintiffs might have based their claim entirely upon the legal obligation of defendants to take up the notes at their respective maturities, they were not bound to waive their right to proceed against the defendants for damages on account of fraud in procuring their execution. This action is brought to recover damages for the deceit practised upon the plaintiffs. The claim here asserted is not one from which the bankrupts are protected by their discharges; for, it is not a claim provable against their estates in bankruptcy. Rev. Stat. §§ 5067-5072, inclusive, 5117, 5119. 2. But had the plaintiffs waived their right to claim damages specifically for the deceit practised upon them, and made a jclaim against the estate of the bankrupts based wholly upon their legal obligation to save plaintiffs harmless on account of their being the makers and indorsers of the notes in question, or if the present action had been based upon that obligation, and not upon the fraud committed by defendants, it would not follow that the defendants would be protected by their discharges in bankruptcy ; for, the statute expressly declares that a discharge is subject, even in respect of claims provable in bankruptcy, to the limitation that no debt created by the fraud'.oí the bankrupt shall be discharged by the proceedings in bankruptcy, and that a debt ■so created may be proved, and the dividend thereon shall be a payment on account of such debt. Rev. Stat. §§ 5117, 5119. It is, therefore, clear that, whether the" }, { "docid": "7575053", "title": "", "text": "DAWKINS, District Judge. This is a petition to review the ruling of the referee sustaining the claim of the wife to a privilege or legal mortgage upon the funds arising from the sale of both movable and immovable property of her bankrupt husband. Although the existence of the indebtedness was contested before the referee, it appears to be admitted in the brief of the opposing creditors and trustee that the amount claimed was actually due, and the only question to be considered here is as to whether the lien or privilege can be asserted against general creditors. The money was received by the wife during the marriage, from the estate of her parents, and used by the husband for the benefit' of the community. She never recorded any evidence thereof prior to the bankruptcy. Opinion. The wife during her marriage is capable of owning two species of separate property and funds, i. e., dotal and paraphernal. Article 2383, La. C. C., declares: “Paraphernal Property. All property which is not declared to be brought in marriage by the wife, or to be given to her in consideration of the marriage or to belong to her at the time of the marriage, is paraphernal.” The state law accords to the wife a privilege upon the movable property of her husband for the repayment of her dotal claims (R. C. C. art. 3215), but this does not extend to claims for paraphernal funds or property. Stafford v. Dunwoodie, 3 Rob.. (La.) 276; Stafford v. Mead, 9 Rob. (La.) 142; Friend v. Fenner, 2 La. Ann. 789; Succession of Richardson, 14 La. Ann. 1. I think it clear, however, from the article of the Code last above quoted, that the claim in this instance is for paraphernal funds; hence the law affecting the dotal claims need not be considered. As bearing upon the claim of a privilege, I quote also the following articles of the Revised Civil Code: “Art. 3311. Legal or Tadt Mortgages. The law alone in certain cases gives to the creditor a mortgage on the property of his debtor, without it" }, { "docid": "12935249", "title": "", "text": "- Mr. Justice Gray, after stating the case, delivered the opinion of the court. - The law of Louisiana as to the rights of married women, which must have a controlling influence on the decision of this case, differs widely from the common law, and a statement of some of its principal rules cannot well be avoided. By the law of-Louisiana, persons contracting marriage may, by ante-nuptial contract before a notary public and in the presence of two witnesses, make such agreements as they please (not affecting the legal order of descents,) concerning the title and enjoyment of their property, and of donations made to them by third persons in consideration of the marriage. Civil Code, Arts 2325 (2305), 2328 (2308), 2329 (2309), 2331 (2311). And the partnership or community of acquets and gains exists between them by operation of law, unless otherwise stipulated in the contract. Arts. 2332 (2312), 2399 (2369). The separate property of the wife is that which she “ brings into the marriage, or acquires during' the marriage by inheritance, or by donation made to her particularly,” and “ is divided into dotal and' extra-dotal. Dotal property is that which the wife brings to the husband to assist him in bearing the expenses of the marriage establishment. Extra-dotal property,' otherwise called paraphernal property, is that which forms no part of the dowry.” Arts. 2334 (2314), 2335 (2315). • “ The wife has a legal mortgage on the property of her husband,” for the restitution or reinvestment of the dotal property or dowry, .and “ for the restitution and reinvestment of her paraphernal property.” Art. 3319 (3287). The marriage contract, out of which this mortgage arises, is required to be recorded in the parish where the husband’s property is. Art. 3349; Louisiana Rev. Stat. § 2381. Such a mortgage is not required, like ordinary mortgages, to be reinscribed every ten years. Civil Code, art. 3369 (3333)'. It attaches to any lands acquired by the husband during coverture, and while his liability to the wife continues to exist. Johnson v. Pilster, 4 Rob. (La.) 71, 76. As a" }, { "docid": "959357", "title": "", "text": "my; there is but one estate. Whether or not an estate by the entirety has been created in property depends upon state law. Collier on Bankruptcy, Vol. 4, p. 1039. The contention of defendants-appellants is that the liability of the husband was discharged under Section 35 of Title 11, United States Code Annotated. That section provides that a discharge in bankruptcy releases the bankrupt from all of his provable debts whether allowable in full or in part, except six specifically defined classifications within none of which is it provided that debts contracted jointly with the wife are exempted. Counsel for defendants-appellants contend that the discharge section of the bankruptcy statute would be rendered a nullity by any decision of the Michigan Court which would, in effect, exempt the bankrupt from the protection of his discharge; that such a ruling would thereby subordi nate federal law to that of a state. Counsel for the plaintiff-appellee concedes that under the law of Michigan no interest of the bankrupt husband in property owned by him and his wife as tenants by the entirety passed to his trustee. In McMullen v. Zabawski, D.C.Mich., 283 F. 552, 556, Judge Tuttle said: “ * * * but the title itself to the property held by such an estate is not capable of division into separate interests, undivided or otherwise, but is one ‘entirety,’ entirely owned by each tenant. There is, therefore, in such a tenancy, no title owned by one of such tenants, and no ‘property which prior to the filing of the petition he could by any means have transferred, or which might have been levied upon and sold under judicial process against him,’ and consequently no interest therein which is ‘vested by operation of law,’ in the trustee under section 70a(5) of the Bankruptcy Act. If, then, the premise of the defendants, that the property here involved is owned by the bankrupt and his wife as tenants by the entirety, were correct, the conclusion based thereon, that no part of such property can be reached by the plaintiff trustee, would be well founded.” Cases" }, { "docid": "12935256", "title": "", "text": "by his discharge in bankruptcy. Rev. Stat. §§5117, 5119; Hennequin v. Clews, 111 U. S. 676; Upshur v. Briscoe, 138 U. S. 365. The remaining question is -whether the appellees can avail themselves of that discharge. The dates bearing upon this question are as follows : The marriage contract, out of which the plaintiff’s mortgage arose, was made in 1868, and recorded in 1870. The husband’s discharge in bankruptcy was obtained in 1877 from all debts due at the commehcement of proceedings in 1876, including his liability to his wife. She had, as yet, no mortgage on these lands, because they were not his property. After this, he purchased the lands, and, in 1881, mortgaged them to the appellees. In 1887, the wife sued the husband and' obtained a judgment for a separation of property, declaring a mortgage in her favor as of the date of the recording of the marriage contract; and upon that judgment took out execution, under which the sheriff levied upon the lands and sold them to her. Under these circumstances, by the law of Louisiana, the debt of the husband to the wife was extinguished by his discharge in bankruptcy; and thereupon her mortgage, which was but a security for that debt, disappeared with it, and could not attaeh to these lands, upon his subsequently purchasing.them; and the appellees, claiming as his creditors, under the mortgage from him to them, were entitled to set up his discharge in bankruptcy against any lien claimed by her upon the lands. Civil Code, arts. 3278 (3215), 3285 (3252), 3166.(3129); Alling v. Egan, 11 Rob. (La.) 244 ; Upshur v. Briscoe, 37 La. Ann. 138, 153, and 138 U. S. 365, 379; Larthet v. Hogan, 1 La. Ann. 330; New Orleans Co. v. Recorder of Mortgages, 27 La. Ann. 291; Klotz v. Macready, 44 La. Ann. 166. Neither the omission of the husband to plead his discharge in bankruptcy in his wife’s-suit against him, nor the judgment recovered by her in that suit, can affect the title of the appellees (who were not parties to that suit) under the" }, { "docid": "12935250", "title": "", "text": "by donation made to her particularly,” and “ is divided into dotal and' extra-dotal. Dotal property is that which the wife brings to the husband to assist him in bearing the expenses of the marriage establishment. Extra-dotal property,' otherwise called paraphernal property, is that which forms no part of the dowry.” Arts. 2334 (2314), 2335 (2315). • “ The wife has a legal mortgage on the property of her husband,” for the restitution or reinvestment of the dotal property or dowry, .and “ for the restitution and reinvestment of her paraphernal property.” Art. 3319 (3287). The marriage contract, out of which this mortgage arises, is required to be recorded in the parish where the husband’s property is. Art. 3349; Louisiana Rev. Stat. § 2381. Such a mortgage is not required, like ordinary mortgages, to be reinscribed every ten years. Civil Code, art. 3369 (3333)'. It attaches to any lands acquired by the husband during coverture, and while his liability to the wife continues to exist. Johnson v. Pilster, 4 Rob. (La.) 71, 76. As a general rule, contracts of sale between husband and wife are prohibited ; but one of the exceptions to this rule is that he may transfer property to her in settlement of claims arising out of her separate property. Civil Code, art. 2446 (2421). The wife has no estate of dower in the lands of her husband, nor any right corresponding or equivalent to dower at common law. The decision in Porter v. Lazear, 109 U. S. 84, therefore, has no application to this case. The liability of the husband to the wife, for her separate ■property received by him under the marriage contract, is in the nature of a debt secúred by mortgage of his lands, and may be enforced by her by direct suit against him. Although the wife cannot maintain an action, in relation either to her dotal or to her paraphernal property, against a third person, unless authorized by her husband, or, if he fails tó do it, by a judge, yet she may, with the authorization of the court in which" }, { "docid": "2657393", "title": "", "text": "an unalterable decree so far as the amount to be contributed by the husband for the support is concerned, looking beneath the judgment for the foundation upon which it rests, we find it was not decreed for any debt of the bankrupt, but was only a means designed by the law for carrying into effect, and making available to the wife and children, the right which the law gives them as against the husband and father. In In re Adams, 25 F.2d 640 (2d Cir. 1928), Judge Learned Hand applied the reasoning of Wetmore in a case factually similar to the present case. Adams involved a pre-divorce agreement which provided for maintenance and support for the wife, until her remarriage or death. Subsequent to the signing of the agreement, the husband obtained a divorce on the grounds of his wife’s adultery. Two years after obtaining the divorce the husband stopped payments, and several years later, while being sued by the wife’s estate for arrearages, declared bankruptcy, seeking to be discharged of these payments. Judge Hand recognized that the husband would only be liable in bankruptcy for these payments if they were in discharge of his common law duty of support, and wrote as follows (at 642): The question then arises whether they are dischargeable under section 17(a)(2) (11 U.S.C.A. § 35[2]) either as “liabilities” for “alimony” or “for maintenance or support of wife or child.” That they are not liabilities for alimony appears not only because they were not granted by decree, but because in New York the guilty defendant is not entitled to alimony. Waring v. Waring, 100 N.Y. 570, 3 N.E. 289; Palmer v. Palmer, 1 Paige, 276 (semble); Perry v. Perry, 2 Barb. Ch. 311. On the other hand, it is plain that, so far as concerns any installments falling due before the divorce, they were certainly for the maintenance of the bankrupt’s wife. However, all those in suit here fell due after the divorce, and consequently at a time when the appellant had no wife and could be under no duty to maintain or support one." } ]

[ { "docid": "13331310", "title": "", "text": "S.Ct. 1367, 4 L.Ed.2d 1435, was concerned with a due process argument relating to classifications established by nonentitlement provisions of the Act affecting aliens. The Court said, Ibid, at 611, 80 S.Ct. at 1373: “Particularly when we deal with a withholding of a noncontractual benefit under a social welfare program such as this, we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.” Under the rubric of equal protection, Richardson, 404 U.S. at 81, 92 S.Ct. at 257, 30 L.Ed.2d 231, cites with approval Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 25 L.Ed.2d 491, and says that a statutory classification in the area of social welfare is consistent with the Equal Protection Clause of the Fourteenth Amendment if it is “rationally based and free from invidious discrimination.” The Court goes on to say that: “While the present case, involving as it does a federal statute, does not directly implicate the Fourteenth Amendment’s Equal Protection Clause, a classification that meets the test articulated in Dandridge is perforce consistent with the due process requirement of the Fifth Amendment.” The Secretary says that the attacked provisions relating to adopted children are rational because the purpose is (1) to replace lost support when a worker becomes retired or disabled, and (2) to ^prevent spurious claims. Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363, was concerned with the rationality of a distinction made by the Social Security Act between two classes of illegitimate children. The decision mentions the position of the Secretary that the purpose was to provide lost support, Ibid, at 633, 94 S.Ct. 2496, and holds that the legislative lines drawn by Congress refute that general principle in the context of illegitimacy. We are concerned with adoption. The intent of Congress to prevent abuse of the Act by adoption after entitlement to old-age benefits is shown by the statement in S. Rep. p. 404, 1 U.S.Cong. & Admin.News 65 p. 2048, that: “The committee believes that the" } ]

[ { "docid": "2118098", "title": "", "text": "(1981) (“Social and economic legislation that does not employ suspect classifications or impinge on fundamental rights must be upheld ... when the legislative means are rationally related to a legitimate government purpose.”). Applying this standard, the Supreme Court has warned that, in general, legislative classifications are “presumed to be valid.” Lyng v. International Union, Etc., 485 U.S. 360, 370, 108 S.Ct. 1184, 1191-92, 99 L.Ed.2d 380 (1988). If such a classification “has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970) (quoting Linds-ley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911)). The police department offers two separate explanations for its policies. First, it justifies its prohibition on reserve participation based on the possibility that officers’ reserve participation would prevent the department from providing adequate police protection in the event that officers were called to active duty. The district court rejected this rationale, noting that most other police departments permit reserve participation. Although this may be true as an empirical matter, it does not lead to the conclusion that the Portsmouth policy was without rational basis. Indeed, in the event of a mass mobilization of reservists, the possibility exists for a town to be left with inadequate police protection. We cannot say that a policy designed to deal with such a possibility lacks a rational basis. The department also points to the fact that the police officers form a separate bargaining unit for the purposes of negotiating city contracts. According to the affidavit of the city’s union contract negotiator, Thomas Cayten, employment benefits vary greatly among the various city departments. Reimbursement of reservists for wages lost during active duty is among the benefits negotiated independently by the city departments. The city’s system of negotiating the employment terms of different groups of city employees is reasonably designed to meet the needs both of the city and the employees." }, { "docid": "13034649", "title": "", "text": "a legitimate governmental interest.” Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 1768-69, 36 L.Ed.2d 583 (1973) (citing Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. at 1724, 1731, 32 L.Ed.2d 285 (1972)); Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971); Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960); McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161-62, 25 L.Ed.2d 491 (1970). Whether defendants’ classifications are unconstitutional turns on the question of reasonableness. In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequity.’ Dandridge v. Williams, 397 U.S. at 485, 90 S.Ct. at 1161-62 (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911)). In cases involving economics and social welfare wherein classifications and resultant “imbalanced” treatment occur, the United States Supreme Court looks for links between legitimate governmental interests and the classifications. E.g. Dandridge v. Williams, supra (State regulation placing a maximum ceiling on benefits in the Aid to Families with Dependent Children (AFDC) program was challenged unsuccessfully by large family recipients. Court found the regulation free from invidious discrimination and found it rationally related to the “State’s legitimate interest in encouraging employment and in avoiding discrimination between welfare families and the families of working poor.” Id. at 486, 90 S.Ct. at 1162); Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972) (State’s decision to provide somewhat lower welfare benefits to AFDC recipients than to the aged and infirm was not invidious or irrational because it is not unreasonable for a state to conclude “that the aged and infirm are the least able of" }, { "docid": "1541667", "title": "", "text": "contours of social welfare programs. “So long as its judgments are rational, and not invidious, the legislature’s efforts to tackle the problems of the poor and the needy are not subject to a constitutional straightjacket.” Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. 1724, 1731, 32 L.Ed.2d 285 (1972). Transforming this respect into practice requires that, in general, legislative classifications be “presumed to be valid.” Lyng, 485 U.S. at 370, 108 S.Ct. at 1191-92; Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520 (1976). Imperfections in classifications, whether or not undesirable, cannot automatically be equated with violations of equal protection. See Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). “If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” Id. (quot ing Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911)); see also Garvey, 629 F.2d at 696. Each social problem suggests a variety of constitutionally permissible solutions and the obligation of choosing among the array rests primarily with the States. See Jefferson, 406 U.S. at 546-47, 92 S.Ct. at 1731-32. The Equal Protection Clause, then, does not force a state legislature to choose between “attacking every aspect of a problem or not attacking a problem at all.” Dandridge, 397 U.S. at 487, 90 S.Ct. at 1162; see also Lyng, 485 U.S. at 370, 108 S.Ct. at 1191-92. By much the same token, government’s resources are finite, and welfare legislation need not provide the same level of benefits to all recipients. See Doe v. Gaughan, 808 F.2d 871, 883 (1st Cir.1986). The State may, constitutionally, attempt to steer between Scylla and Charybdis, addressing in good faith only one aspect, or a few aspects, of a multifaceted problem. See Garvey, 629 F.2d at 696. Consistent with the principle of respecting a State’s policy choices, the burden of proving that a state regulation is" }, { "docid": "12321041", "title": "", "text": "conclude that the duration-of-relationship test meets this constitutional standard.” 422 U.S. at 777, 95 S.Ct. at 2472-73. In the instant case, Congress made a rational judgment that households typically pool funds to meet shared expenses, and that the AFDC calculation should be based on the total amount of income available to each family. For all of these reasons, we reject appellants’ claim that the statute violates their right to procedural due process. B. Equal Protection Appellants claim that the regulation and policy deprives them of equal protection under law by imposing a burden on one group of OASDI beneficiaries in an arbitrary and capricious manner. The regulation effectively divides OASDI beneficiaries into two classes: those who live with family members who are otherwise eligible for AFDC assistance, and those who do not. In the first case, the regulation compels that the OASDI benefits be used for the entire family, while in the second case, the recipient enjoys full use of the benefits. Although this situation may appear unfair, it does not amount to a constitutional violation. In Belcher, 404 U.S. 78, 92 S.Ct. 254, the Supreme Court stated that: A statutory classification in the area of social welfare is consistent with the Equal Protection Clause of the Fourteenth Amendment if it is “rationally based and free from invidious discrimination.” Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491. While the present case, involving as it does a federal statute, does not directly implicate the Fourteenth Amendment’s Equal Protection Clause, a classification that meets the test articulated in Dandridge is perforce consistent with the due process requirement of the Fifth Amendment. Cf. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 [(1954)]. Id. at 81, 92 S.Ct. at 257. “If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because in practice it ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” Dandridge, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). For the reasons articulated above," }, { "docid": "20798899", "title": "", "text": "words: Under these decisions, a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally. We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because her natural father has not married her mother. For a State to do so is “illogical and unjust.” 409 U.S. at 818, 93 S.Ct. at 875. While recognizing the “lurking problems with respect to proof of paternity” and admitting that they “are not to be lightly brushed aside,” the court held that “neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination.” Other Supreme Court cases, although not directly concerned with illegitimacy, have dealt with the problem of discrimination in social welfare legislation. The general principle established by these decisions is that invidious discrimination which is not rationally related to the statute’s purpose is impermissible. United States Dept. of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973); United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). However, the cases recognize also that social welfare legislation cannot be expected to be surgically precise in its classification and the existence of some discrimination incidental to the statute’s goal and the means used to achieve it will not make the statute constitutionally infirm under either the Fifth or Fourteenth Amendments. Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). What the Court stated in Dandridge, supra at 485, 90 S.Ct. at 1161, in regard to equal protection: In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some “reasonable basis,” it does" }, { "docid": "18448384", "title": "", "text": "Amendment and under the Tenth Amendment. Defendants do not contend that Congress lacks the authority under the Commerce Clause generally to regulate in the area of employee benefit plans involving interstate commerce or that federal regulation can never preempt state regulation occupying the same field. The Court concludes that ERISA as construed is constitutional. A Defendants argue that there is no valid basis for distinguishing state workmen’s compensation, unemployment compensation, and disability insurance laws from state health insurance laws and that the exemption in § 4(b)(3) for the former and not the latter deprives defendants of due process of law. The Due Process Clause of the Fifth Amendment does require that Congress employ only those classifications that are rationally related to the achievement of legitimate federal goals. Richardson v. Belcher, 404 U.S. 78, 84, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971); Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1953). The Supreme Court’s definition of the standard of review under the Equal Protection Clause of the Fourteenth Amendment applies equally to this litigation under the Fifth Amendment: “In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, [31 S..Ct. 337, 1340, 55 L.Ed. 369], ‘The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.’ Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70, [33 S.Ct. 441, 443, 57 L.Ed. 730]. ‘A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ McGowan v. Maryland, 366 U.S. 420, 426, [81 S.Ct. 1101, 1105, 6 L.Ed. 2d 393].” Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970)." }, { "docid": "20818961", "title": "", "text": "89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). The first question to be considered is what is the appropriate standard for determining if plaintiffs have been afforded due process under the Fifth Amendment. The cases which followed Bolling v. Sharpe, have not clearly delineated the proper test to be used. In Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960), the Court upheld the validity of a section of the Social Security Act which terminated certain benefits of aliens who were deported. The standard enunciated in that case was that “the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.” 363 U.S. at 611, 80 S.Ct. at 1373. More recently in Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971), the Court stated that: A statutory classification in the area of social welfare is consistent with the Equal Protection Clause of the Fourteenth Amendment if it is ‘rationally based and free from invidious discrimination.’ Dandridge v. Williams, 397 U.S. 471, 487 [90 S.Ct. 1153, 1162, 25 L.Ed.2d 491], While the present case, involving as it does a federal statute, does not directly implicate the Fourteenth Amendment’s Equal Protection Clause, a classification which meets the test articulated in Dandridge is perforce consistent with the due process requirement of the Fifth Amendment. Cf. Bolling v. Sharpe, 347 U.S. 497, 499 [74 S.Ct. 693, 694, 98 L.Ed. 884], 404 U.S. at 81, 92 S.Ct. at 257. Later in the same opinion it is said that: If the goals sought are legitimate, and the classification adopted is rationally related to the achievement of those goals, then the action of Congress is not so arbitrary as to violate the Due Process Clause of the Fifth Amendment. 404 U.S. at 84, 92 S.Ct. at 258. More recently, however, the Supreme Court in Weber v. Aetna Casualty & Surety Co., 406 S.Ct. 1400, 31 L.Ed.2d 768 (1972) stated that: The tests to determine the validity of state statutes under the Equal Protection Clause have been" }, { "docid": "7899728", "title": "", "text": "1383, 12 L.Ed.2d 506. It does not permit legislation that accords different treatment to persons classified on the basis of criteria wholly unrelated to the objective of the statute. Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 30 L.Ed.2d 225. In Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435, the Supreme Court said, “. . . when we deal with a withholding of a noncontractual benefit under a social. welfare program such as this, we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.” The interest of a Social Security claimant is protected by the due process clause from arbitrary governmental action but such benefits do not have the protection of accrued property rights. The social security system “is a child of Congress and, as such, subject to its regulation”. Randolph v. United States, 274 F.Supp. 200, 203 (M.D.N.C.), aff’d 389 U.S. 570, 88 S.Ct. 695, 19 L.Ed.2d 785. “A statutory classification in the area of social welfare is consistent with the Equal Protection Clause of the Fourteenth Amendment if it is ‘rationally based and free from invidious discrimination.’ ” Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231; Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 25 L.Ed.2d 491. “To characterize an act of Congress as conferring a ‘public benefit’ does not, of course, immunize it from scrutiny under the Fifth Amendment.” Richardson v. Belcher, supra. However, the Constitution does not leave Government “an unrestricted range when it engages in doling out public funds.” De Rodulfa v. United States, 149 U.S.App.D.C. 154, 461 F.2d 1240, 1256. “So long as its judgments are rational, and not invidious, the legislature’s efforts to tackle the problems of the poor and the needy are not subject to a constitutional strait jacket.” Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. 1724, 1731, 32 L.Ed.2d 285. In drawing the line between eligibility and non-eligibility Congress does not have to use" }, { "docid": "13628553", "title": "", "text": "legislature ever contemplated applying the category to a household such as the plaintiff’s. Citing Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), and several later Supreme Court decisions, the defendants argue that the category represents a reasonable generalization which is not rendered invalid by the hardship it may generate in an individual case. I agree that 20 C.F.R. § 416.2030 does not necessarily require categories designed by the states to fit the economic situation of every individual SSI applicant. A classification is not irrational because it “is not made with mathematical nicety or because in practice it results in some inequality.” Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369, quoted in Dandridge v. Williams, supra, 397 U.S. at 485, 90 S.Ct. 1153. The standards enunciated in Dandridge v. Williams for determining whether a classification is rational under the equal protection clause are equally applicable to 20 C.F.R. § 416.2030. But the plaintiff is not simply arguing that the category creates a hardship in his individual case. The arbitrariness which the plaintiff asserts extends to a class of SSI recipients who have similar household compositions: aged, blind or disabled parents caring for minor children or grandchildren in their home. Although this household arrangement may be less common than others, it is by no means unique to the plaintiff and is readily definable in categorical terms. It is not rational to categorize this group of recipients as “living with others” because the category assumes a reduced need in situations in which need increases. It is true that the children of SSI recipients will normally be eligible for A.F.D.C. The hardship imposed on the plaintiff would of course be reduced if A.F.D.C. benefit levels were more generous. But it nevertheless is irrational to ignore the increased need of the SSI recipient and to assume that other benefit programs, which are known to be inadequate, will enable the children to bear their share of the household’s increased costs. The defendants do not challenge the plaintiff’s contention that the children’s income" }, { "docid": "23235006", "title": "", "text": "the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” Mathews v. De Castro, 429 U.S. 181, 185, 97 S.Ct. 431, 434, 50 L.Ed.2d 389 (1976) (quoting Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970)); see Weinberger v. Salfi, 422 U.S. 749, 769, 95 S.Ct. 2457, 2468, 45 L.Ed.2d 522 (1975) (A classification is not unconstitutional simply because it is not drawn with mathematical exactness or results in some inequality; it must be upheld if it has a “reasonable basis.”); Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971) (“A statutory classification in the area of social welfare is consistent with the Equal Protection Clause of the Fourteenth Amendment if it is ‘rationally based and free from invidious discrimination.’ ” (quoting Dandridge, 397 U.S. at 487, 90 S.Ct. at 1162)); Tyson, 727 F.2d at 1031 (“Congress is not required to draw lines with great precision when it enacts social welfare legislation.”). Furthermore, with respect to spending money for the general welfare: Our review is deferential because “[g]overnment decisions to spend money [Social Security funds] to improve the general public welfare in one way and not in another are ‘not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.’ ” Oliver, 821 F.2d at 1515 (quoting Bowen v. Owens, 476 U.S. 340, 345, 106 S.Ct. 1881, 1885, 90 L.Ed.2d 316 (1986) (citations omitted)); see Bowen, 476 U.S. at 345, 106 S.Ct. at 1885 (The Social Security program is a “massive one, and requires Congress to make many distinctions among classes of beneficiaries while making allocations from a finite fund.”). The legislative history of section 210(a)(3)(B) of the Social Security Act, 42 U.S.C. § 410(a)(3)(B), is instructive in our assessment of the rational basis envisioned by Congress in enacting this legislation complete with amendments. As originally adopted in 1935, section 210 of the Social Security Act, 42 U.S.C. § 410, sought" }, { "docid": "13034650", "title": "", "text": "1161-62 (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911)). In cases involving economics and social welfare wherein classifications and resultant “imbalanced” treatment occur, the United States Supreme Court looks for links between legitimate governmental interests and the classifications. E.g. Dandridge v. Williams, supra (State regulation placing a maximum ceiling on benefits in the Aid to Families with Dependent Children (AFDC) program was challenged unsuccessfully by large family recipients. Court found the regulation free from invidious discrimination and found it rationally related to the “State’s legitimate interest in encouraging employment and in avoiding discrimination between welfare families and the families of working poor.” Id. at 486, 90 S.Ct. at 1162); Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972) (State’s decision to provide somewhat lower welfare benefits to AFDC recipients than to the aged and infirm was not invidious or irrational because it is not unreasonable for a state to conclude “that the aged and infirm are the least able of the categorical grant recipients to bear the hardships of an inadequate standard of living. ... [I]t is not irrational for the State to believe that the young are more adaptable than the sick and elderly....” Id. at 549, 92 S.Ct. at 1733); Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971) (Recipient of federal disability benefits challenged classification wherein his benefits were reduced as a result of his receipt of state workmen’s compensation benefits. The Court found Congress’ goals of encouraging able workers to return to work and forestalling the erosion of workmen’s compensation programs were legitimate, and the challenged classification was rationally related to the achievement of those goals.) In the case at bar, defendants have not clearly articulated just what their interests are. This makes the task of evaluating the legitimacy of the state’s interests difficult. Further, defendants have not coherently argued the link between the classifications of in-state versus out-of-state and the achievement of state interests (whatever they may be). Rather, they defend their decision by pointing out" }, { "docid": "20798900", "title": "", "text": "of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973); United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). However, the cases recognize also that social welfare legislation cannot be expected to be surgically precise in its classification and the existence of some discrimination incidental to the statute’s goal and the means used to achieve it will not make the statute constitutionally infirm under either the Fifth or Fourteenth Amendments. Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). What the Court stated in Dandridge, supra at 485, 90 S.Ct. at 1161, in regard to equal protection: In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.” it later reaffirmed in Richardson, supra, 404 U.S. at 84, 92 S.Ct. at 258, for due process: We have no occasion, within our limited function under the Constitution, to consider whether the legitimate purposes of Congress might have been better served by applying the same offset to recipients of private insurance, or to judge for ourselves whether the apprehensions of Congress were justified by the facts. If the goals sought are legitimate, and the classification adopted is rationally related to the achievement of those goals, then the action of Congress is not so arbitrary as to violate the Due Process Clause of the Fifth Amendment. The child’s insurance benefits provision of the Social Security Act is founded on the dual concepts of parentage and dependency. To be eligible for benefits, a claimant must be both the child of and dependent upon the deceased wage earner. 42 U.S.C. § 402(d)(1). The purpose of" }, { "docid": "21578423", "title": "", "text": "the United States Constitution; or, (3) violate the Bankruptcy Clause of the United States Constitution by effecting a nonuniform application of federal bankruptcy laws and denying Wood equal access to the bankruptcy courts. The issues presented are discussed seriatim. A. Equal Protection Congressional legislation enjoys a presumption of constitutionality. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 14, 96 S.Ct. 2882, 2891-92, 49 L.Ed.2d 752 (1976). The party contending that the statute, or a portion thereof, is unconstitutional has the burden of overcoming that presumption. Id. The Supreme Court has articulated various standards for evaluating claims that a particular piece of legislation, as applied, violates an individual’s rights of substantive due process and equal protection under the Fifth Amendment. Whether a particular standard will govern in a case depends upon the nature of the challenge and of the legislation involved. The Court has held that bankruptcy legislation is social and economic in nature. United States v. Kras, 409 U.S. 434, 446, 93 S.Ct. 631, 638, 34 L.Ed.2d 626 (1973). When a piece of social or economic legislation is challenged on equal protection grounds, the legislation generally will be upheld if the classifications established by the legislation rationally relate to a legitimate government interest. Kras, 409 U.S. 434, 93 S.Ct. at 631. Under the “rational relationship” test, a court reviewing the constitutionality of a classification only may strike down the classification if the classification is without any reasonable justification. Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911). Thus, even if in a particular case the classification, as applied, appears to discriminate irrationally, the classification must be upheld if “any set of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). Wood has failed to demonstrate that the statutes involved are unconstitutional. The statutes do create two classes of debtors, and the classes established do rationally relate to a legitimate government interest." }, { "docid": "672285", "title": "", "text": "violate Fifth Amendment equal protection standards, reasoning that the presumption of dependency embodied in section 402(b) is rationally justified. The Government argues, alternatively, that only suspect classifications are impermissible in Social Security legislation because no plaintiff possesses a contractual right to any particular distribution of Social Security benefits; that the congressional intent underlying spousal benefits was to provide aid to “dependent” spouses only, and that the presumption of dependency accorded to a female spouse by section 402(b) is justified by current and historic labor practices and statistics; and that any preference accorded female spouses by the combination of section 402(b) and section 402(c)(1)(C) is constitutionally permissible as remedial legislation aimed at eradicating lingering vestiges of past economic discrimination against women. The Government has additionally taken the position that any sex discrimination inherent in section 402(c)(1)(C) is justified by the severe strain which would be placed upon the Social Security system by any broadening of the class of statutory beneficiaries currently enumerated in sections 402(b) and (c). Much ink has been spilled in this case upon the question of what standard of review ought properly be applied in examining the sex-based classification given effect by section 402(c)(1)(C). The Government supports the challenged classification as “ ‘rationally based and free from invidious discrimination.’ ” Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971), quoting from Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). Plaintiffs, on the other hand, point to the following standard set forth in Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971): * * * A classification “must be reasonable, not arbitrary, and must • rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Royster Guano Co. v. Virginia, 253 U. S. 412, 415, [40 S.Ct. 560, 561, 64 L.Ed. 989] (1920). * * * [Emphasis added.] In describing the import of the equal protection test set forth in Reed, Judge Winter," }, { "docid": "23235005", "title": "", "text": "or application of the statutes and regulations to those facts. She contends that section 210(a)(3)(B) of the Social Security Act, 42 U.S.C. § 410(a)(3)(B), is arbitrary and irrational because it distinguishes her for the purpose of denying retirement benefits on the basis of her daughter’s marital status. She, therefore, argues that this section, as it applies to her, violates the equal protection clause of the Fourteenth Amendment. “Social security legislation is tested under a rational basis standard.” Tyson v. Heckler, 727 F.2d 1029, 1030 (11th Cir.), cert. denied, 469 U.S. 853, 105 S.Ct. 176, 83 L.Ed.2d 111 (1984); see Oliver v. Ledbetter, 821 F.2d 1507, 1513 (11th Cir.1987) (“[Classifications created by social welfare legislation must withstand a minimal level of scrutiny in order to survive due process and equal protection challenges.”). A categorical oversight does not render a statute constitutionally infirm: In enacting legislation of this kind a government does not deny equal protection “merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” Mathews v. De Castro, 429 U.S. 181, 185, 97 S.Ct. 431, 434, 50 L.Ed.2d 389 (1976) (quoting Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970)); see Weinberger v. Salfi, 422 U.S. 749, 769, 95 S.Ct. 2457, 2468, 45 L.Ed.2d 522 (1975) (A classification is not unconstitutional simply because it is not drawn with mathematical exactness or results in some inequality; it must be upheld if it has a “reasonable basis.”); Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971) (“A statutory classification in the area of social welfare is consistent with the Equal Protection Clause of the Fourteenth Amendment if it is ‘rationally based and free from invidious discrimination.’ ” (quoting Dandridge, 397 U.S. at 487, 90 S.Ct. at 1162)); Tyson, 727 F.2d at 1031 (“Congress is not required to draw lines with great precision when it enacts social welfare" }, { "docid": "12321042", "title": "", "text": "violation. In Belcher, 404 U.S. 78, 92 S.Ct. 254, the Supreme Court stated that: A statutory classification in the area of social welfare is consistent with the Equal Protection Clause of the Fourteenth Amendment if it is “rationally based and free from invidious discrimination.” Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491. While the present case, involving as it does a federal statute, does not directly implicate the Fourteenth Amendment’s Equal Protection Clause, a classification that meets the test articulated in Dandridge is perforce consistent with the due process requirement of the Fifth Amendment. Cf. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 [(1954)]. Id. at 81, 92 S.Ct. at 257. “If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because in practice it ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” Dandridge, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). For the reasons articulated above, the classification in the instant case is not arbitrary and does rationally further the federal and state governments’ interest in distributing limited AFDC funds to the most needy families. Thus, we conclude that the implementing regulations and policy do not violate appellants’ rights to equal protection or due process. CONCLUSION In light of Congress’ intent to amend the AFDC program to include all income of parents, brothers and sisters, including OASDI benefits, in calculating the level of assistance, we are compelled to reject appellants' statutory and constitutional challenges to the implementing regulations and policy. Our holding is limited to the context of OASDI benefits and we do not determine whether other forms of income fall within the scope of 42 U.S.C. § 602(a)(38). AFFIRMED. . The statute provides in pertinent part: in making the determination under paragraph (7) with respect to a dependent child and applying paragraph (8), the State agency shall (except as otherwise provided in this part) include— (A) any parent of such child, and (b) any brother or sister of such child," }, { "docid": "7899729", "title": "", "text": "785. “A statutory classification in the area of social welfare is consistent with the Equal Protection Clause of the Fourteenth Amendment if it is ‘rationally based and free from invidious discrimination.’ ” Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231; Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 25 L.Ed.2d 491. “To characterize an act of Congress as conferring a ‘public benefit’ does not, of course, immunize it from scrutiny under the Fifth Amendment.” Richardson v. Belcher, supra. However, the Constitution does not leave Government “an unrestricted range when it engages in doling out public funds.” De Rodulfa v. United States, 149 U.S.App.D.C. 154, 461 F.2d 1240, 1256. “So long as its judgments are rational, and not invidious, the legislature’s efforts to tackle the problems of the poor and the needy are not subject to a constitutional strait jacket.” Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. 1724, 1731, 32 L.Ed.2d 285. In drawing the line between eligibility and non-eligibility Congress does not have to use slide rules or calipers. “In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369. ‘The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific’. Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 57 L.Ed. 730.” Dandridge v. Williams, supra, 397 U.S. 485, 90 S.Ct. 1161. Counsel distinguishes Dandridge on the basis that it involved different classes differently treated while the present case concerns two classes of “indistinguishable people”, one of which is entitled to rent assistance and the other is ineligible. Plaintiff stresses the two 1973 rulings of the" }, { "docid": "6439044", "title": "", "text": "that in the areas of economics and social welfare, the acts of the State need only a reasonable basis. In Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), the United States Supreme Court held: “In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 [31 S.Ct. 337, 340, 55 L.Ed. 369]. ...” Id. at 485, 90 S.Ct. at 1161. Here, the opportunity to halt the flow of stolen goods provides a reasonable basis for the ten-day holding period. Plaintiffs’ comparison to automobile dealers does not undermine the reasonable basis of the Act. It is apodictic that the legislature cannot affect all possible trails of stolen goods in every enactment. That the legislature seeks to erect a barricade at one gate to slow the traffic does not violate the Equal Protection Clause in that other paths have not yet been blocked. “The Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all.\" Dandridge v. Williams, supra, 897 U.S. at 486-87, 90 S.Ct. at 1162, citing Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911). INTERSTATE COMMERCE Plaintiffs’ final attack on the holding period alleges that the Act places an impermissible burden on interstate commerce. The general rule for determining whether a State has placed an impermissible burden on interstate commerce is stated in Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970): “... Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in" }, { "docid": "3230845", "title": "", "text": "scheme he carries out. Jacquet v. Westerfield, 5 Cir. 1978, 569 F.2d 1339, 1344; Johnson’s Professional Nursing Home v. Weinberger, 5 Cir. 1974, 490 F.2d 841, 844. In light of these constraints and the fact that HEW’s construction of the statute is a reasonable one and is within the scope of its statutory authority, we hold that under the statute HEW and Mississippi may allow institutionalized applicants to anticipate expenses while not allowing non-institutionalized persons to do so. B. Constitutional Issues Plaintiffs assert that treating institutionalized applicants differently from non-institutionalized ones with regard to spend-down procedures violates the constitutional guarantees of equal protection.. We disagree. In Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), the Supreme Court stated that a legislative classification scheme involving welfare funds will withstand an equal protection challenge if it does not make an invidious discrimination, is supported by a rational basis, and furthers a legitimate state interest. The Court further noted that in the area of social welfare, a state does not violate the Equal Protection Clause merely because the classification made by its laws are imperfect. If the classification has reasonable basis, it “does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality’.” 397 U.S. at 485, 90 S.Ct. at 1161, quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 55 L.Ed. 369 (1911). In subsequent cases the Court has consistently reaffirmed the basic principle articulated in Dandridge. See, e. g., Califano v. Jobst, 434 U.S. 47, 98 S.Ct. 95, 54 L.Ed.2d 228 (1977); Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977); Mathews v. de Castro, 429 U.S. 181, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976); Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976); Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975); Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30" }, { "docid": "8524571", "title": "", "text": "either the Fifth or Fourteenth Amendments. In 1970 in Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970), the Supreme Court stated: “In the area of economics and social welfare, the State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality’. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 [31 S.Ct. 337, 55 L.Ed. 369] ... ‘A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ McGowan v. Maryland, 366 U.S. 420, 426 [81 S.Ct. 1101, 6 L.Ed.2d 393].” The argument which assumes that the constitutional guarantee of equal protection is not violated merely because a statute authorizes one citizen to be treated differently than others, is of course, subject to the qualification that the statute does not establish an invidious discrimination. In addition the argument does not reach the question of whether an otherwise constitutional enactment is being applied in an unconstitutional manner. Equal protection, absent an invidious discrimination, requires only that a Congressional enactment have some reasonable relation to a statutory objective or purpose. This statute is certainly not arbitrary, or capricious and has a rational basis. This consent requirement was provided to ensure that low-rent housing would be coupled with the slum clearance provisions of the Act, and to buttress the notion of cooperative federalism. The plaintiffs have not shown that the requirement of 42 U.S.C. § 1415(7)(b) (i) is based on a suspect category or affects fundamental rights. On its face this requirement does not discriminate on the basis of race. Moreover, it does not establish an invidious discrimination based upon wealth. While it is true that local consent is required only under the federal housing program for the poor, this does not, ipso facto, establish an invidious discrimination. Under some circumstances legislative enactments which have discriminated on" } ]

[ { "docid": "15135429", "title": "", "text": "of transportation, meals and lodging expenses incurred in attending various meetings of the committee during the pendency of this bankruptcy proceeding. As noted above, the members of the committee were very active and knowledgeable and their participation in this case contributed to the successful reorganization. No objection has been asserted to the allowance of the creditors’ committee’s expenses. It has long been the practice of this Court, under both the Bankruptcy Act and Code, to allow reimbursement of expenses incurred by individual members of creditors’ committees where the expenses were reasonably and necessarily incurred in the course of performing committee duties. The former Bankruptcy Rules specifically authorized the reimbursement of these expenses. See former Bankruptcy Rules 11-29(c), 10-215 and 12-28. While some courts have read Code Section 503(b)(3)(D) as precluding reimbursement, see, e.g., In re Interstate Restaurant Systems, Inc., 30 B.R. 32 (Bankr.S.D.Fla.1983), I agree with the well-reasoned opinion of Bankruptcy Judge Glennon in In re GHR Energy Corp., 35 B.R. 539 (Bankr.D.Mass.1983) that the Code is silent on the issue and policy reasons and both the old Rules and new Bankruptcy Rule 2016 authorize the reimbursement of out of pocket expenses incurred by committee members. See also In re Toy & Sports Warehouse, Inc., 38 B.R. 646 (Bankr.S.D.N.Y.1984). Accordingly, having reviewed the documentation submitted by each committee member in support of their applications, the Court confirms as final the interim reimbursements previously received and in addition awards the following reasonable reimbursement of expenses: Reimbursement Committee Member Award E. I. duPont de Nemours & Co. $2,900.00 Arlington Trust Company 481.06 Casco Bank & Trust Company 1,200.00 Bank of New England, N.A. 1,650.00 Mobay Chemical Corporation 2,200.00 Ti Caro, Inc. 5,500.00 It is so Ordered. ORDER In accordance with the foregoing Memorandum, it is hereby (1) ORDERED: That all prior awards of interim fees and reimbursements previously awarded in these cases be and hereby are confirmed as final awards; and it is further (2) ORDERED: That, in addition to the interim awards confirmed as final above, the following amounts are awarded to the following applicants: NAME OF APPLICANT AMOUNTS TO BE" } ]

[ { "docid": "23385795", "title": "", "text": "states that a committee “other than a committee appointed under section 1102” is entitled to reimbursement of expenses, should be interpreted so as to allow non-statutory committees to recover but, at the same time, to deny recovery to the statutorily appointed committee. Gulf continues that since statutory committees are denied recovery, their members and their members’ counsel are, by necessary implication, also excluded. Although this “prohibitive” approach urged by Gulf has received judicial support in some jurisdictions, see, e.g., In re Restaurant Systems, 30 B.R. 32, 33 (Bankr.S.D.Fla.1983), other courts have taken a “definitional” approach — i.e., that the words “other than a committee appointed under section 1102” were intended to permit reimbursement for expenses of creditors’ committees in addition to the committee appointed under section 1102, and not to exclude the section 1102 committee itself. See, e.g. In re Labine, 42 B.R. 883, 887-88 (Bankr.E.D.Mich.1984). However, under this “definitional” approach, statutory creditors’ committees would have to satisfy the requirement in section 503(b)(3)(D) that the entity have made a “substantial contribution” in the case. This court believes neither the prohibitive nor the definitional view is correct, but rather adopts the view set forth in In re Global International Airways Corp., 45 B.R. 258, 12 B.C.D. 669 (Bankr.W.D.Mo.1984). As Judge Pelofsky observed in Global, under the Bankruptcy Act creditors’ committee expenses could be charged against the estate. Id. at 258-59, 12 B.C.D. at 670. Compensation was expressly provided for in Rule ll-29(c), which continued to be controlling under the Code until 1981, when the local rules for this district adopted the Interim Bankruptcy Rules and Forms. The Interim Rules, like the Rules of Bankruptcy Procedure which became effective August 1, 1983, but unlike former Rule ll-29(c), did not expressly provide that expenses of committees could be reimbursed. Rather Rule 2016 only sets forth the procedure for obtaining reimbursement of expenses, without indicating which entities are entitled to reimbursement. The advisory committee note, however, states that a committee is included within its provisions. Once the new rules became effective, however, neither the statute nor the rule contained language specifically providing for reimbursement" }, { "docid": "15142048", "title": "", "text": "MEMORANDUM OPINION ON APPLICATION FOR REIMBURSEMENT OF EXPENSES BY MEMBERS OF OFFICIAL UNSECURED CREDITORS COMMITTEE ARTHUR J. SPECTOR, Bankruptcy Judge. Various creditors have applied for reimbursement from the estate as administrative expenses of their out-of-pocket expenses relating to the performance of their duties as part of the official unsecured creditors committee. Section 503 of the Code deals with the allowance of admins-trative expenses. The part of that section which is in issue here is: “(b) After notice and a hearing, there shall be allowed administrative expenses, other than claims allowed under section 502(f) of this title, including— ... (3) the actual, necessary expenses, other than compensation and reimbursement specified in paragraph (4) of this subsection, incurred by— ... (D) a creditor, an indenture trustee, an equity security holder, or a committee representing creditors or equity security holders other than a committee appointed under section 1102 of this title, in making a substantial contribution in a case under Chapter 9 or Chapter 11 of this title ...” The exclusion of offical committees in the above quoted subsection is the subject of much controversy. Some courts have disallowed claims for administrative expenses for reimbursement of creditor committee expenses, finding that there is no express provision of the Code which allows it: In re UNR Industries, Inc., 736 F.2d 1136, 11 B.C.D. 1324 (7th Cir.1984); In re Farm Bureau Services, Inc., 32 B.R. 69 (Bankr.E.D.Mich.1983); In re Interstate Restaurant Systems, Inc., 30 B.R. 32, 10 B.C.D. 1442, reaffirmed on reconsideration, 32 B.R. 103 (Bankr.S.D.Fla.1983); In re Lyons Machinery Co., 28 B.R. 600, 10 B.C.D. 510 (Bankr.E.D.Ark.1983) ; In re Major Dynamics, Inc., 2 C.B.C.2d 1330, 16 B.R. 279, 8 B.C.D. 759 (Bankr.S.D.Cal.1981). Other courts have allowed such expenses based upon a variety of rationales: In re Toy & Sports Warehouse, Inc., 10 C.B.C.2d 847, 38 B.R. 646 (Bankr.S.D.N.Y.1984); In re GHR Energy Corp., 35 B.R. 539, 11 B.C.D. 315 (Bankr.D.Mass.1983); In re Pennsylvania Tire & Rubber Co., 25 B.R. 18, (Bankr.N.D.Ohio 1982); In re Grynberg, 6 C.B.C.2d 541, 19 B.R. 621, 8 B.C.D. 1337 (Bankr.D.Colo.1982) ; In re Fireside Office Supply, Inc., 5" }, { "docid": "13305410", "title": "", "text": "an official unsecured creditors’ committee. Pursuant to 11 U.S.C. § 503(b)(3)(D) the Bankruptcy Court may allow as an administrative expense the actual, necessary expenses of “a creditor, an indenture trustee, an equity security holder, or a committee representing creditors or equity security holders other than a committee appointed under Section 1102 of this title, in making a substantial contribution in a ease under Chapter 9 or 11 of this title.... ” Thus, the creditors’ committee referred to in 11 U.S.C. § 503(b)(3)(D) is an unofficial committee of creditors who make “a substantial contribution” to the Chapter 11 case, as distinguished from the official creditors’ committee who are appointed under 11 U.S.C. § 1102. See In re GHR Energy Corp., 35 B.R. 539, 541 (Bkrtcy.D.Mass.1983). The official creditors’ committee was entitled to reimbursement of their expenses and compensation for attorneys, accountants and other agents employed by them in accordance with the provisions of former Bankruptcy Rule ll-29(c). However, when the Bankruptcy Reform Act of 1978 was adopted, no provision was made for the reimbursement of the expenses of individual members of an official creditors’ committee. This situation was described in 3 Norton Bankruptcy Law and Practice § 52.14 (Supp.1983), as follows: Under the former Bankruptcy Act, creditor’s committee and individual members of such committees were entitled to reimbursement for their reasonable and necessary expenses, as allowed under Bankruptcy Rule 11-29. However, that part of Rule 11-29 which permitted reimbursement of expenses to creditor’s committees and individual committee members was not expressly carried forward into 11 USC § 503 which governs the allowance of administrative expenses. Section 503(b)(3)(D) does provide for reimbursement of expenses incurred by “a creditor;” nothing is said about a creditor who is also a member of creditor’s committee pursuant to § 1102. In light of the continued efficacy of former Bankruptcy Rule ll-29(c) in the context of Chapter 11 cases under the Bankruptcy Code, the Bankruptcy Courts were divided on the allowability of reimbursement of the expenses of individual members of the official creditors’ committee. Some courts held that such reimbursement was unauthorized because former Rule 11-29(c) conflicts" }, { "docid": "12843637", "title": "", "text": "and In re Fireside Office Supply, Inc., 17 B.R. 43 (Bankr.D.Minn.1981) allowed reimbursement of expenses to committee members under the rationale that the former Rules of Bankruptcy Procedure, including Rule ll-29(c), remained in effect until August 1, 1983, when the new Rules became effective, unless inconsistent with the Code. These Courts found no inconsistency between Rule ll-29(c) and § 503 of the Code. In the case of In re Farm Bureau Services, Inc., 32 B.R. 69 (Bankr.E.D.Mich.1982), the Court held that individual members of a committee would be entitled to reimbursement of expenses from the estate, if they were able to demonstrate a substantial contribution to the case. However, the Court denied the request for reimbursement because the expenses were incurred in travelling to and from committee meetings, and no substantial contribution was shown. The Court stated: ... it appears to this court that the present state of the law requires that committee members must do more than faithfully attend meetings and contribute thoughts and opinions in order to recover expenses. If work is done above and beyond this level which amounts to special assignments and activity not done by ordinary members, then expenses of such activities may be reimbursed. Id. at 71. The new Bankruptcy Rules became effective on August 1, 1988. Rule 2016(a) provides a procedure for obtaining court approval of requests for compensation and reimbursement of expenses. The Advisory Committee Note to Rule 2016(a) states that the Rule includes within its provisions a committee, member thereof, agent, attorney or accountant for the committee when compensation or reimbursement of expenses is sought from the estate. Two (2) courts have held that expenses incurred by individual members of a creditors’ committee may be reimbursed, if shown to be actual and necessary, in light of Rule 2016(a) and the Advisory Committee Note. See In re Toy & Sports Warehouse, Inc., 38 B.R. 646 (Bankr.S.D.N.Y.1984); In re GHR Energy Corp., 35 B.R. 539 (Bankr.Mass.1983). In both of these cases, reimbursement was allowed as supportive of the policy of encouraging active committee participation in the reorganization process. In GHR Energy, the Court" }, { "docid": "13305412", "title": "", "text": "with the Bankruptcy Code and that the remedy must be supplied by Congress. See In re Interstate Restaurant Systems, Inc., 30 B.R. 32, 10 B.C.D. 1442 (Bkrtcy.S.D.Fla.1983); In re Lyons Machinery Co., 28 B.R. 600 (Bkrtcy.E.D.Ark.1983); In re Major Dynamics, Inc., 16 B.R. 279 (Bkrtcy.S.D.Cal.1981). Other courts continued to apply the practice under former Rule ll-29(c) on the theory that active creditor participation should be encouraged and that there was no conflict with the provisions under the Bankruptcy Code. See In re Pennsylvania Tire & Rubber Co., 25 B.R. 18 (Bkrtcy.N.D.Ohio 1982); Fireside Office Supply, Inc., 17 B.R. 43, 8 B.C.D. 202 (Bkrtcy.D.Minn.1981). Another court held that the individual members provided a substantial contribution to the debtor’s reorganization.and satisfied the requirements of 11 U.S.C. § 503(b)(3)(D). See In re Grynberg, 19 B.R. 621 (Bkrtcy.D.Colo.1982). On August 1, 1983, the new Bankruptcy Rules prescribed under 28 U.S.C. § 2075 became effective. Bankruptcy Rule 2016 is captioned “COMPENSATION FOR SERVICES RENDERED AND REIMBURSEMENT OF EXPENSES.” This rule provides in part that “[a] person seeking interim or final compensation for services, or reimbursement of necessary expenses, from the estate shall file with the court an application setting forth a detailed statement of (1) the services rendered, time expended and expenses incurred, and (2) the amounts requested.” No specific reference is made in Rule 2016 to either an official creditors’ committee or to the reimbursement of individual members for their out of pocket expenses. However, the Advisory Committee Note accompanying Rule 2016 states in part: Subdivision (a) includes within its provisions a committee, member thereof, agent, attorney or accountant for the committee when compensation or reimbursement of expenses is sought from the estate, (emphasis added) In In re GHR Energy Corp., 35 B.R. 539 (Bkrtcy.D.Mass.1983), Bankruptcy Judge Paul W. Glennon concluded in a well-reasoned opinion that there are compelling policy reasons for holding that Bankruptcy Rule 2016 authorizes the reimbursement of out of pocket expenses incurred by individual members of an official creditors’ committee while attending creditors’ meetings, stating: In the subject case the unsecured debt is substantial and many members of the creditors’" }, { "docid": "10182241", "title": "", "text": "denied reimbursement for expenses incurred by members of the creditors’ committee. In re Lyons Machinery Co., Inc., 28 B.R. 600 (Bkrtcy.E.D.Ark.1983); In re Farm Bureau Services, Inc., 32 BR 69 (Bkrtcy.E.D.Mich.1982). In both those cases the courts held that the committee must show substantial contribution to the reorganization before reimbursement would be allowed. Both appear to rely on the language of Section 503(b)(3)(D) but the plain language of that section refers to a committee not appointed under Section 1102. In re Grynberg, 19 B.R. 621 (Bkrtcy.Col.1982) the court allowed reimbursement to individual creditors, distinguishing the language of Section 503(b)(3)(D) as applying only to the requests of the committee itself. But the court reads Section 503(b)(3)(D) as barring the reimbursement of expenses of the official committee as a committee. Relying upon the fact that former bankruptcy rules remained in effect unless inconsistent with the Code, the court in In re Fireside Office Supply, Inc., 11 B.R. 43 (Bkrtcy.Minn.1981) held that committee members could be reimbursed for actual and necessary expenses which contributed to the success of the reorganization. That holding is no longer helpful in that new rules have been adopted. Rule 2016, Rules of Bankruptcy Procedure, effective August 1,1983, provides for reimbursement of expenses. The Advisory Committee note to the Rule states that the procedure contemplates applications by a committee. Reading the history and statutory language, in light of Rule 2016, two courts have held that expenses incurred by individual members of an official creditors’ committee may be reimbursed, if shown to be actual and necessary. In re GHR Energy Corp., 35 B.R. 539 (Bkrtcy.Mass.1983); In re Toy & Sports Warehouse, Inc., 38 B.R. 646 (Bkrtcy.S.D.N.Y.1984). In both of those cases the court allowed reimbursement as supportive of the statutory policy encouraging active participation of the committees in the reorganization process. Prior to enactment of the Code and new rules it was clear that expenses incurred by the creditors’ committee in a Chapter 11 reorganization would be allowed as administrative expenses. Even after enactment of the Code, and before the new rules became effective, expenses of the committee appointed under" }, { "docid": "15142049", "title": "", "text": "subsection is the subject of much controversy. Some courts have disallowed claims for administrative expenses for reimbursement of creditor committee expenses, finding that there is no express provision of the Code which allows it: In re UNR Industries, Inc., 736 F.2d 1136, 11 B.C.D. 1324 (7th Cir.1984); In re Farm Bureau Services, Inc., 32 B.R. 69 (Bankr.E.D.Mich.1983); In re Interstate Restaurant Systems, Inc., 30 B.R. 32, 10 B.C.D. 1442, reaffirmed on reconsideration, 32 B.R. 103 (Bankr.S.D.Fla.1983); In re Lyons Machinery Co., 28 B.R. 600, 10 B.C.D. 510 (Bankr.E.D.Ark.1983) ; In re Major Dynamics, Inc., 2 C.B.C.2d 1330, 16 B.R. 279, 8 B.C.D. 759 (Bankr.S.D.Cal.1981). Other courts have allowed such expenses based upon a variety of rationales: In re Toy & Sports Warehouse, Inc., 10 C.B.C.2d 847, 38 B.R. 646 (Bankr.S.D.N.Y.1984); In re GHR Energy Corp., 35 B.R. 539, 11 B.C.D. 315 (Bankr.D.Mass.1983); In re Pennsylvania Tire & Rubber Co., 25 B.R. 18, (Bankr.N.D.Ohio 1982); In re Grynberg, 6 C.B.C.2d 541, 19 B.R. 621, 8 B.C.D. 1337 (Bankr.D.Colo.1982) ; In re Fireside Office Supply, Inc., 5 C.B.C.2d 111, 17 B.R. 43, 8 B.C.D. 202 (Bankr.D.Minn.1981). This opinion will (humbly) at tempt to distinguish and/or harmonize these cases, posit an hypothesis meant to bridge the gaps between them, approach the “true” legislative intent, and facilitate what all agree to be the “proper” policy result. There are compelling policy considerations which weigh in favor of the allowance of official committee expenses. Prohibiting reimbursement of expenses incurred in the course of performing committee duties may “deter unsecured creditors, who perhaps need to participate most in a Chapter 11 proceeding, from accepting a position on the committee.” In re Lyons Machinery, Inc., 28 B.R. at 602. In many cases, such as this one, the unsecured debt is substantial and members of the creditors’ committee may be located at great distances from the court where the case is pending. “Forcing members to finance their participation in a Chapter 11 case seems particularly unfair when their pocketbook interests have already been damaged because of their business relationship with the debtor. These creditors are already absorbing the costs" }, { "docid": "12843638", "title": "", "text": "above and beyond this level which amounts to special assignments and activity not done by ordinary members, then expenses of such activities may be reimbursed. Id. at 71. The new Bankruptcy Rules became effective on August 1, 1988. Rule 2016(a) provides a procedure for obtaining court approval of requests for compensation and reimbursement of expenses. The Advisory Committee Note to Rule 2016(a) states that the Rule includes within its provisions a committee, member thereof, agent, attorney or accountant for the committee when compensation or reimbursement of expenses is sought from the estate. Two (2) courts have held that expenses incurred by individual members of a creditors’ committee may be reimbursed, if shown to be actual and necessary, in light of Rule 2016(a) and the Advisory Committee Note. See In re Toy & Sports Warehouse, Inc., 38 B.R. 646 (Bankr.S.D.N.Y.1984); In re GHR Energy Corp., 35 B.R. 539 (Bankr.Mass.1983). In both of these cases, reimbursement was allowed as supportive of the policy of encouraging active committee participation in the reorganization process. In GHR Energy, the Court circumvented the exclusionary effect of the phrase “other than a committee appointed under section 1102” by stating: This clause is a long-handed expression for a voluntary, unofficial committee. The words_are not words of prohibition but simply part of the definition of an unofficial committee. 35 B.R. at 542; accord In re Malden Mills, Inc., 42 B.R. 476 (Bankr.D.Mass.1984). Other notable decisions addressing the issue of whether members of an official creditors’ committee may be reimbursed for their expenses have focused on Congressional intent. See In re Labine, 42 B.R. 883 (Bankr.E.D.Mich.1984) and In re Global International Airways, 45 B.R. 258 (Bankr.W.D.Mo.1984). In a relaxation of the “substantial contribution” standard, the Court in Labine granted the application of various creditors, who were members of the official creditors’ committee, for reimbursement of their out-of-pocket expenses relating to the performance of their duties as part of the committee. The Court points out that Congress inadvertently omitted from the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. 98-353, a new subpara-graph to section 503(b), which would have expressly" }, { "docid": "14810253", "title": "", "text": "Judge Robert John Hall in In re General Oil Distributors, Inc., 51 B.R. 794, 804-06 (Bankr.E.D.N.Y.1985). Even those courts that have interpreted paragraph (D) to exclude reimbursement for the statutory committee have indicated that logic and equity seem to demand a different result, and have therefore been unable to conjecture why Congress would have desired to permit recovery for non-statutory committees but summarily deny recovery for committees appointed under Section 1102. See e.g., In re Lyons Machinery Co., 28 B.R. 600, 602 (Bankr.E.D.Ark.1983). The effect of such an inconsistency would be to promote a shift away from the nonreimbursable statutory committee to the fully recoverable voluntary committee, thereby rendering meaningless almost the entire statutory mechanism which Congress explicitly provided for in Chapter 11 cases. See In re Major Dynamics, Inc., 16 B.R. 279, 280 (Bankr.S.D.Cal.1981). See also In re Global International Airways Corp., 45 B.R. 258 (Bankr.W.D.Mo.1984); In re Toy & Sports Warehouse, Inc., 38 B.R. 646 (Bankr.S.D.N.Y.1984); In re GHR Energy Corp., supra. Accordingly, the Court concludes the reasonable expenses incurred by members of the Official Creditors’ Committee of the Debtor, appointed pursuant to Code § 1102, are reimbursable. Turning to the actual application of the Committee, the Court will approve the application as submitted, with the exception of the meal expense submitted by Edwin Fitchett, which the Court reduces to the sum of $420.00, making a total reimbursement to Edwin Fitchett of $2,189.52, and the meal expense of Alson Fitchett, which the Court reduces to $35.00, making a total reimbursement to Alson Fitchett of $296.29. The Court notes its approval of allowances herein is limited to the expenses of the members of the Committee, and is not to be interpreted as an approval of expenses of similar type and amount when incurred by professionals appointed pursuant to Code § 327. IT IS SO ORDERED." }, { "docid": "13305409", "title": "", "text": "DECISION ON APPLICATION FOR REIMBURSEMENT TO INDIVIDUAL MEMBERS OF OFFICIAL CREDITORS’ COMMITTEE HOWARD SCHWARTZBERG, Bankruptcy Judge. Having reviewed and determined the applications for compensation that were filed in this confirmed Chapter 11 case there remains for consideration the question whether individual members of the official unsecured creditors’ committee may be reimbursed for their travel and lodging expenses incurred in attending the various meetings of the committee. Five members of the official creditors’ committee submitted applications for reimbursement of transportation, meals and lodgings (three members required lodgings), for a total of $4,582.23. The meetings of the official creditors’ committee occurred in New York City, whereas the committee members travelled from California, Rhode Island, Massachusetts (two) and Connecticut to attend. There is no question that they comprised a very active and involved group of creditors whose participation in this Chapter 11 reorganization produced tangible results. However, the problem stems from the fact that Chapter 11 of the Bankruptcy Code, 11 U.S.C. §§ 1101-1174, is silent as to the reimbursement of the expenses, incurred by individual members of an official unsecured creditors’ committee. Pursuant to 11 U.S.C. § 503(b)(3)(D) the Bankruptcy Court may allow as an administrative expense the actual, necessary expenses of “a creditor, an indenture trustee, an equity security holder, or a committee representing creditors or equity security holders other than a committee appointed under Section 1102 of this title, in making a substantial contribution in a ease under Chapter 9 or 11 of this title.... ” Thus, the creditors’ committee referred to in 11 U.S.C. § 503(b)(3)(D) is an unofficial committee of creditors who make “a substantial contribution” to the Chapter 11 case, as distinguished from the official creditors’ committee who are appointed under 11 U.S.C. § 1102. See In re GHR Energy Corp., 35 B.R. 539, 541 (Bkrtcy.D.Mass.1983). The official creditors’ committee was entitled to reimbursement of their expenses and compensation for attorneys, accountants and other agents employed by them in accordance with the provisions of former Bankruptcy Rule ll-29(c). However, when the Bankruptcy Reform Act of 1978 was adopted, no provision was made for the reimbursement of the" }, { "docid": "10214031", "title": "", "text": "bankruptcy court had denied the application, even though the motion was not opposed by any party in interest, holding that there is no statutory authorization under the Bankruptcy Code for the reimbursement of the out of pocket expenses of members of the committee. The committee appealed the bankruptcy judge’s order and the district court, after considering the matter, reversed the bankruptcy court and remanded the matter for further consideration. In reaching its decision, the district court held that the bankruptcy judge was correct in finding, as a matter of law, that the relevant standard for determining reim-bursability is “substantial contribution” by the person or committee making the request. The court then held: However, this Court holds that expenses incurred by the members of a § 1102 committee, in furtherance of the authorized business and mission of that committee, are presumed to be expenses incurred for the betterment of the estate and to the benefit of the estate. The only expenses of § 1102 committee members that should not be reimbursed are those that are shown to be frivolous or not in furtherance of the betterment of the estate. The § 1102 committee member who seeks reimbursement must make some showing to the bankruptcy judge so that the judge can distill those expenses that are reimbursable from those that are not reimbursable from those that are. Ibid, at 583. See also In re GHR Energy Corp., 35 B.R. 539 (Bankr.D.Mass.1983); In re White Motor Credit Corporation, 50 B.R. 885 (Bankr.N.D.Ohio 1985). An alternate approach has also been used by the courts to allow for the reimbursement of expenses to committee members. The question was most persuasively addressed by the court in the case of In re Global International Airways Corporation, 45 B.R. 258 (Bankr.W.D.Mo.1984). The court there looked to the legislative history of the Bankruptcy Code concerning the duties to be performed by the official committees. After considering the matter, the court held: This Court concludes, therefore, that the expenses of the committees appointed under Section 1102, if actually incurred and necessary to performance of committee duties, may be allowed as" }, { "docid": "10214034", "title": "", "text": "they can be found to have made a substantial contribution to the case. Support for the view of the Global case can be gleaned from the legislative history of the Code. Under the original Senate bill the forerunner to present Section 1102 provided that in public cases a trustee would be appointed as in the proceedings under old Chapter X. With the appointment of a trustee to protect the interests of the creditors and stockholders, the Senate bill perceived no need for official committees. In discussing this proposal, the Senate report states: There is no need for the election or appointment of committees for which the appointment of a trustee is mandatory. In the case of a public company there are likely to be several committees, each representing a different class of security holders and seeking authority to retain accountants, lawyers, and other experts, who will expect to be paid. If in the case of a public company creditors or stockholders wish to organize committees, they may do so, as authorized under Section 1109(a). Compensation and reimbursement will be allowed for contributions to the reorganization pursuant to Sections 503(b)(3) and (4). S.Rep. No. 989, 95th Cong., 2d Sess. (1978), at page 114, U.S.Code Cong. & Admin.News 1978, pp. 5787, 5900. Thus, it appears clear that in the view of the Senate, Section 503(b)(3) is only applicable to unofficial committees. Nothing is said in the legislative history specifically addressing the allowance of reimbursement of expenses to the official committees or their members. Other courts have similarly found that reimbursement of expenses of the official committee for their members are properly allowable as an administrative expense under Section 503(b)(1). In the case of In re Toy and Sports Warehouse, Inc., 38 B.R. 646 (Bankr.S.D.N.Y.1984), Bankruptcy Judge Schwartzberg held: Manifestly, it is important that creditors be encouraged to participate in the reorganization process, since the Bankruptcy Code is so structured as to contemplate negotiations and give and take between the debtor and the creditors. It is in this context that knowledgeable creditors should take an active role in determining the course that the" }, { "docid": "10214035", "title": "", "text": "and reimbursement will be allowed for contributions to the reorganization pursuant to Sections 503(b)(3) and (4). S.Rep. No. 989, 95th Cong., 2d Sess. (1978), at page 114, U.S.Code Cong. & Admin.News 1978, pp. 5787, 5900. Thus, it appears clear that in the view of the Senate, Section 503(b)(3) is only applicable to unofficial committees. Nothing is said in the legislative history specifically addressing the allowance of reimbursement of expenses to the official committees or their members. Other courts have similarly found that reimbursement of expenses of the official committee for their members are properly allowable as an administrative expense under Section 503(b)(1). In the case of In re Toy and Sports Warehouse, Inc., 38 B.R. 646 (Bankr.S.D.N.Y.1984), Bankruptcy Judge Schwartzberg held: Manifestly, it is important that creditors be encouraged to participate in the reorganization process, since the Bankruptcy Code is so structured as to contemplate negotiations and give and take between the debtor and the creditors. It is in this context that knowledgeable creditors should take an active role in determining the course that the reorganization case should take, including an investigation and examination into the conduct of the debtor’s affairs and the negotiations necessary for the confirmation of the debt- or’s plan of reorganization. Such participation by individual creditors as members of an official creditors’ committee should not be chilled by requiring them to finance their travel and out of pocket expenses incurred in attending official creditors’ committee meetings. Such costs are properly necessary and part of the recoverable administrative expenses contemplated under the Bankruptcy Code and Rules. Ibid at 648. See also, In re General Oil Distributors, Inc., 51 B.R. 794 (Bankr.E.D.N.Y.1985); In re GHR Energy Corp., supra; In re Aviation Technical Support, Inc., 72 B.R. 32 (Bankr.W.D.Tex.1987). The Court is aware of cases such as In re Lyons Machinery Company, Inc., 28 B.R. 600 (Bankr.E.D.Ark.1983) and In re Interstate Restaurant Systems, Inc., 30 B.R. 32 (Bankr.S.D.Fla.1983) which have held that expenses of official committees cannot be reimbursed out of the estate. The Court finds these cases to be unpersuasive and contrary to the policy underlying Section 1102" }, { "docid": "10182242", "title": "", "text": "the reorganization. That holding is no longer helpful in that new rules have been adopted. Rule 2016, Rules of Bankruptcy Procedure, effective August 1,1983, provides for reimbursement of expenses. The Advisory Committee note to the Rule states that the procedure contemplates applications by a committee. Reading the history and statutory language, in light of Rule 2016, two courts have held that expenses incurred by individual members of an official creditors’ committee may be reimbursed, if shown to be actual and necessary. In re GHR Energy Corp., 35 B.R. 539 (Bkrtcy.Mass.1983); In re Toy & Sports Warehouse, Inc., 38 B.R. 646 (Bkrtcy.S.D.N.Y.1984). In both of those cases the court allowed reimbursement as supportive of the statutory policy encouraging active participation of the committees in the reorganization process. Prior to enactment of the Code and new rules it was clear that expenses incurred by the creditors’ committee in a Chapter 11 reorganization would be allowed as administrative expenses. Even after enactment of the Code, and before the new rules became effective, expenses of the committee appointed under Section 1102 could be reimbursed, relying upon the application of Rule 11-29. Promulgation of the new rules without language mirroring Rule 11-29 suggests a gap. But it is also apparent that there is no evidence of an intention not to allow reimbursement of the expenses incurred by committees appointed under Section 1102. See an exchange between Senators DeConcini and Dole recorded in Part II of the Congressional Record, Friday, October 5, 1984, at p. S-13772 which went as follows: “Sen. DeConcini: On another matter confusion has arisen concerning the payment of necessary expenses incurred by a creditors’ committee appointed under Section 1102. Although there is not a specific provision providing for this type of expense in the Code, this has long been the practice and the obvious equitable thing to do. Would you agree that this type of expense should be paid and that nothing in the recently enacted Bankruptcy Amendments and Federal Judgeship Act would suggest a different construction? Sen. Dole: I absolutely agree. It is essential for the orderly and professional administration of" }, { "docid": "10214032", "title": "", "text": "to be frivolous or not in furtherance of the betterment of the estate. The § 1102 committee member who seeks reimbursement must make some showing to the bankruptcy judge so that the judge can distill those expenses that are reimbursable from those that are not reimbursable from those that are. Ibid, at 583. See also In re GHR Energy Corp., 35 B.R. 539 (Bankr.D.Mass.1983); In re White Motor Credit Corporation, 50 B.R. 885 (Bankr.N.D.Ohio 1985). An alternate approach has also been used by the courts to allow for the reimbursement of expenses to committee members. The question was most persuasively addressed by the court in the case of In re Global International Airways Corporation, 45 B.R. 258 (Bankr.W.D.Mo.1984). The court there looked to the legislative history of the Bankruptcy Code concerning the duties to be performed by the official committees. After considering the matter, the court held: This Court concludes, therefore, that the expenses of the committees appointed under Section 1102, if actually incurred and necessary to performance of committee duties, may be allowed as administrative expenses under 503(b)(1)(A). The statutory duties imposed upon the committee presume that such activities are essential to the preservation of the estate. Ibid, at 261. As to the provisions of Section 503(b)(3)(D), the court read those provisions as language enlarging those parties who may be reimbursed if they make a “substantial contribution in a case under chapter ... 11”. There is nothing in Section 503(b)(3)(D) that compels the reading that it bars reimbursement to appointed committees. Rather this reading establishes a two tier test: one for official committees and another for volunteer committees in terms of qualifying for reimbursement. An official committee is reimbursed if it performs its statutory duties. A volunteer committee is reimbursed if it makes a substantial contribution. Ibid at 261. See also, In re General Oil Distributors Inc., 51 B.R. 794 (Bankr.E.D.N.Y.1985). This Court concurs with the opinion in the Global case. By its terms, Section 503(b)(3)(D) does not exclude reimbursement of the expenses to an official committee. Rather, that section only applies to exclude reimbursement to unofficial committees unless" }, { "docid": "14810250", "title": "", "text": "Judge Scholl’s conclusion represents a literal interpretation of Code § 503(b)(3)(D), which provides there shall be allowed as an administrative claim the actual and necessary expenses of “a committee representing creditors or equity security holders other than a committee appointed under § 1102 of this title, in making a substantial contribution in a case under Chapter 9 or 11 of this title;”. Logically, Bankruptcy Judge Scholl concluded that having specifically exempted a creditors’ committee appointed pursuant to Code § 1102 (official creditors’ committee) from eligibility for reimbursement of its members’ expenses, Congress, and not the courts, must reconsider a statute which the Court acknowledges could result in, “undermining active creditor involvement” in a Chapter 11 case. While it is difficult to take issue with rationale of cases such as In the Matter of UNR Industries, Inc., supra, In re Automotive National Brands, Inc., supra, and In re J.E. Jennings, Inc., supra, the Court does not believe that Congress, in enacting the Code, (specifically Code § 503(b)(3)(D)), intended to allow compensation to an “unofficial” committee of creditors who substantially contribute to the case, yet deny compensation to the so-called official creditors’ committee appointed pursuant to Code § 1102, whose powers and duties are specifically enumerated by statute. Code § 1103. As aptly stated by Bankruptcy Judge Paul W. Glennon in In re GHR Energy Corp., 35 B.R. 539, 543 (Bankr.D.Mass. 1983), commenting on the premise that Congress could not have intended to deny expense reimbursement to members of an official creditors’ committee: Finally, under the scheme adopted by the Bankruptcy Reform Act of 1978, i.e., with the bankruptcy judge removed from active participation in the case and the preference for leaving the debtor in possession, a § 1102 committee has a more important role in terms of monitoring the debtor’s business life and developing the terms of the plan of reorganization. I do not believe that it is sensible to conclude that Congress mandated a more critical role for official committees and at the same time chose to change the existing rule and bar members from obtaining reimbursement for the expenses" }, { "docid": "14810252", "title": "", "text": "incurred in performing their duties, (footnotes omitted). Prior to the adoption of the Code, Former Bankruptcy Rule 11-29 authorized expense reimbursement to official creditors’ committees and their members. However, Rule 11-29, insofar as it pertained to such reimbursement, was not included in either the Code, or the new Bankruptcy Rules adopted pursuant to the Code. As has been pointed out in numerous decisions both pro and con, the Advisory Committee Note accompanying Fed.R. Bankr.P. 2016, indicates the Rule was intended to encompass “a committee, member thereof, agent, attorney or accountant for the committee when compensation or reimbursement of expenses is sought from the estate.” Unfortunately, Fed.R. Bankr.P. 2016 does not specifically include a reference to the official creditors committee or its members, and obviously the Advisory Committee Note does not carry the force of law. After considering the various views reflected in the many conflicting bankruptcy court decisions, as well as the rationale of the United States Court of Appeals for the Seventh Circuit, the Court is compelled to adopt the view expressed by Bankruptcy Judge Robert John Hall in In re General Oil Distributors, Inc., 51 B.R. 794, 804-06 (Bankr.E.D.N.Y.1985). Even those courts that have interpreted paragraph (D) to exclude reimbursement for the statutory committee have indicated that logic and equity seem to demand a different result, and have therefore been unable to conjecture why Congress would have desired to permit recovery for non-statutory committees but summarily deny recovery for committees appointed under Section 1102. See e.g., In re Lyons Machinery Co., 28 B.R. 600, 602 (Bankr.E.D.Ark.1983). The effect of such an inconsistency would be to promote a shift away from the nonreimbursable statutory committee to the fully recoverable voluntary committee, thereby rendering meaningless almost the entire statutory mechanism which Congress explicitly provided for in Chapter 11 cases. See In re Major Dynamics, Inc., 16 B.R. 279, 280 (Bankr.S.D.Cal.1981). See also In re Global International Airways Corp., 45 B.R. 258 (Bankr.W.D.Mo.1984); In re Toy & Sports Warehouse, Inc., 38 B.R. 646 (Bankr.S.D.N.Y.1984); In re GHR Energy Corp., supra. Accordingly, the Court concludes the reasonable expenses incurred by members of" }, { "docid": "12843639", "title": "", "text": "circumvented the exclusionary effect of the phrase “other than a committee appointed under section 1102” by stating: This clause is a long-handed expression for a voluntary, unofficial committee. The words_are not words of prohibition but simply part of the definition of an unofficial committee. 35 B.R. at 542; accord In re Malden Mills, Inc., 42 B.R. 476 (Bankr.D.Mass.1984). Other notable decisions addressing the issue of whether members of an official creditors’ committee may be reimbursed for their expenses have focused on Congressional intent. See In re Labine, 42 B.R. 883 (Bankr.E.D.Mich.1984) and In re Global International Airways, 45 B.R. 258 (Bankr.W.D.Mo.1984). In a relaxation of the “substantial contribution” standard, the Court in Labine granted the application of various creditors, who were members of the official creditors’ committee, for reimbursement of their out-of-pocket expenses relating to the performance of their duties as part of the committee. The Court points out that Congress inadvertently omitted from the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. 98-353, a new subpara-graph to section 503(b), which would have expressly provided for reimbursement of the actual, necessary expenses of a committee: Section 503 of the Code now ends with a semi-colon and the word “and”, as in its haste, the Congress, the government printer, or a clerk, neglected to include the paragraph which was obviously intended to follow the “and” at the end of paragraph (6) of § 503(b). The paragraph omitted — this new “inadvertent defect,” In re UNR Industries, Inc., [736 F.2d 1136], 11 B.C.D. [1324] at 1327 [(1984)] — was the paragraph contained in each prior version of the proposed bankruptcy amendment which would have added expenses of official committees to the itemized list of allowable administrative expenses. It is by now abundantly clear that Congress has been continually frustrated in effectuating its abiding intent to include such a provision expressly into the text of the code as a separate species of allowable administrative expenses. Its purpose can only be to clearly show that it means for official committees to be reimbursed for their expenses on a basis other than a showing" }, { "docid": "18721688", "title": "", "text": "incurred by— (A) a creditor that files a petition under section 303 of this title; (B) a creditor that recovers, after the court’s approval, for the benefit of the estate any property transferred or concealed by the debtor; (C) a creditor in connection with the prosecution of a criminal offense relating to the case or to the business or property of the debtor; (D) a creditor, an indenture trustee, an equity security holder, or a committee representing creditors or equity security holders other than a committee appointed under section 1102 of this title, in making a substantial contribution in a case under chapter 9 or 11 of this title; or (E) a custodian superseded under section 543 of this title, and compensation for the services of such custodian; ... (emphasis added) Our research revealed that the above statutory provisions have been read in many different ways, with variant results, by numerous courts. As the Creditors’ Committee suggests, the decision in In re General Oil Distributors, Inc., 51 B.R. 794 (Bankr.E.D.N.Y.1985), would allow the compensation sought herein. Although admitting that the Code nowhere specifically allows compensation to Creditors’ Committee members, the Court in General Oil refuses to read the language of 11 U.S.C. § 503(b)(3)(D) as prohibitive of allowance of such compensation, finding support in the Advisory Committee Notes to Bankruptcy Rule 2016 that, despite lack of specific mention, authority for such compensation is implicitly contained in § 503(b)(1)(A). Cases reasoning similarly include In re Global International Airways Corp., 45 B.R. 258 (Bankr.W.D.Mo.1984); In re La-bine, 42 B.R. 883 (Bankr.D.Mich.1984); In re Toy and Sports Warehouse, Inc., 38 B.R. 646 (Bankr.S.D.N.Y.1984); Matter of Pennsylvania Tire and Rubber Co., 25 B.R. 18 (Bankr.N.D.Ohio 1982); and In re Fireside Office Supply, Inc., 17 B.R. 43 (Bankr.D.Minn.1981). Several other cases reach the same result, but rely also upon ultimately unadopt-ed amendments to the Bankruptcy Court and Federal Judgeship Act of 1984 which proposed to specifically allow Creditors’ Committees to receive “actual necessary expenses, other than compensation and reimbursement specified in [11 U.S.C. § 503(b)(2)], incurred” by a Creditors’ Committee. In re GHR Energy Corp.," }, { "docid": "18721689", "title": "", "text": "herein. Although admitting that the Code nowhere specifically allows compensation to Creditors’ Committee members, the Court in General Oil refuses to read the language of 11 U.S.C. § 503(b)(3)(D) as prohibitive of allowance of such compensation, finding support in the Advisory Committee Notes to Bankruptcy Rule 2016 that, despite lack of specific mention, authority for such compensation is implicitly contained in § 503(b)(1)(A). Cases reasoning similarly include In re Global International Airways Corp., 45 B.R. 258 (Bankr.W.D.Mo.1984); In re La-bine, 42 B.R. 883 (Bankr.D.Mich.1984); In re Toy and Sports Warehouse, Inc., 38 B.R. 646 (Bankr.S.D.N.Y.1984); Matter of Pennsylvania Tire and Rubber Co., 25 B.R. 18 (Bankr.N.D.Ohio 1982); and In re Fireside Office Supply, Inc., 17 B.R. 43 (Bankr.D.Minn.1981). Several other cases reach the same result, but rely also upon ultimately unadopt-ed amendments to the Bankruptcy Court and Federal Judgeship Act of 1984 which proposed to specifically allow Creditors’ Committees to receive “actual necessary expenses, other than compensation and reimbursement specified in [11 U.S.C. § 503(b)(2)], incurred” by a Creditors’ Committee. In re GHR Energy Corp., 35 B.R. 539, 541 (Bankr.D.Mass.1983). See also In re Malden Mills, Inc., 42 B.R. 476, 488 (Bankr.D.Mass.1984). Another group of cases hold that, although 11 U.S.C. § 503(b)(3)(D) bars compensation to Creditors’ Committees per se, it does not bar compensation to individual members of these Committees. In re Farm Bureau Services, Inc., 32 B.R. 69 (Bankr.E.D.Mich.1982); and In re Grynberg, 19 B.R. 621 (Bankr.D.Colo.1982). These courts proceed to apply the standards of 11 U.S.C. § 503(b)(3)(D) to requests for compensation by committee members, and reach variant results, Farm Bureau holding that the “substantial contribution” element is much more difficult to establish than does the court in Grynberg. Finally, a group of cases holds that 11 U.S.C. § 503(b)(3)(D) must be read literally as a prohibition upon receipt of compensation or reimbursement by any Creditors’ Committee, their officers, or any Committee members. In re Air Haiti, 46 B.R. 539 (Bankr.S.D.Fla.1985); In re Interstate Restaurant Systems, Inc., 30 B.R. 32 (Bankr.S.D.Fla.1983), reaff'd, 32 B.R. 103 (Bankr.S.D.Fla.1983); In re Lyons Machinery Co., 28 B.R. 600 (Bankr.E.D.Ark.1983); and In" } ]

[ { "docid": "22666136", "title": "", "text": "the breadth of discretion that our country's legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse. And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise. We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment. Accordingly, the judgment of the Court of Appeals is Reversed. While cross-examining Hayes during the subsequent trial proceedings the prosecutor described the plea offer in the following language: “Isn't it a fact that I told you at that time [the initial bargaining session] if you did not intend to plead guilty to five years for this charge and . . . save the court the inconvenience and necessity of a trial and taking up this time that I intended to return to the grand jury and ask them to indict you based upon these prior felony convictions?” Tr. 194. At the time of Hayes’ trial the statute provided that “[a]ny person convicted a . . . third time of felony . . . shall be confined in the penitentiary during his life.” Ky. Rev. Stat. §431.190 (1973) (repealed 1975). That statute has been replaced by Ky. Rev. Stat. § 532.080 (Supp. 1977) under which Hayes would have been sentenced to, at most, an indeterminate term of 10 to 20 years. § 532.080 (6) (b). In addition, under the new statute a previous conviction is a basis for enhanced sentencing only if a prison term of one year or more was imposed, the sentence or probation was completed within five years of the present offense, and the offender was over the age of 18 when the offense was committed. At least one of Hayes’ prior convictions did not meet these conditions. See n. 3, infra. According to his own testimony, Hayes had pleaded guilty in 1961, when he was" } ]

[ { "docid": "7438098", "title": "", "text": "the immunity agreement — the defendant or potential defendant seeks benefits he is otherwise unentitled to under the law; in return, he promises to forgo something to which he is entitled. These are “give-and-take” situations akin to a contractual negotiation, in which the parties are negotiating at arms-length. See Parker v. North Carolina, 397 U.S. 790, 809, 90 S.Ct. 1474, 1479, 25 L.Ed.2d 785 (1970) (Brennan, J., dissenting) (characterizing a plea bargain as a “give-and-take negotiation ... between the prosecution and defense, which arguably possess relatively equal bargaining power”). They are not the type of situations in which the danger that the defendant’s “will [will be] overborne,” Rogers, 365 U.S. at 544, 81 S.Ct. at 741, is so great that a per se rule is necessary to prevent the possibility. Thus, we conclude that Bordenkircher precludes a per se involuntariness rule for informal immunity agreements as well as for plea bargains. Cf. Trammel v. United States, 445 U.S. 40, 53, 100 S.Ct. 906, 914, 63 L.Ed.2d 186 (1980) (holding without discussion that fact that witness spouse testified against defendant “after a grant of immunity and assurances of lenient treatment does not render [spouse’s] testimony involuntary,” and citing Borden-kircher). Moreover, we believe the case Taylor cites as support for his proposed per se rule, Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), is inapposite. The Bram Court stated in dicta that “a confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight____” Taylor argues that the Court’s use of the words “however slight” is evidence that governmental promises in the immunity context render consequential statements involuntary, no matter what the surrounding circumstances. See also Shotwell, 371 U.S. at 348, 83 S.Ct. at 453-54 (stating in dicta that “[petitioners’ position is not like that of a person ... to whom a policeman, a prosecutor, or an investigating agency has made a promise of immunity or leniency in return for a statement. In" }, { "docid": "18554766", "title": "", "text": "This means that a vital confession, such as is involved in this case, may go to the jury only if it is subjected to the screening in accordance with correct constitutional standards. It is well established that the Fifth Amendment’s privilege against self-incrimination prohibits the admission of incriminating statements obtained by Government acts, threats or promises which permit the defendant’s will to be overborne and thus rendered involuntary. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963), reh. denied, 372 U.S. 950, 83 S.Ct. 931, 9 L.Ed.2d 975 (1963). In Shotwell the critical issue was whether incriminating disclosures should have been suppressed oil the ground of immunity. The individual defendants, officers of Shot-well, contended that their incriminating disclosures were not given freely and voluntarily because they were obtained by direct or implied promises of immunity. Thus, the same contention was advanced there as that before us in the instant case. The Supreme Court revisited Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961) for the rule that the prosecution must establish a defendant’s guilt by evidence independently and freely secured without coercion or inducement from a person under a governmental promise of immunity, citing to Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 186-87, 42 L.Ed. 568 (1897). The Shotwell court held that no inducement or coercion had occurred and stated, inter-alia: A coerced confession claim, whether founded on a promise of immunity or otherwise, always involves this question: did the governmental conduct complained of “bring about” a confession “not freely self-determined”? Rogers v. Richmond, supra, at 544 [81 S.Ct. at 741]---- [Petitioners’ position is not like that of a person, accused or suspected of crime, to whom a policeman, a prosecutor, or an investigating agency has made a promise of immunity or leniency in return for a statement. In those circumstances, an inculpatory statement would be the product of inducement, and thus not an act of free will. 371 U.S. at 348," }, { "docid": "7438093", "title": "", "text": "The district court of appeal affirmed the trial court’s judgment without comment. Taylor v. State, 514 So.2d 367 (1987) (table). After exhausting his state remedies, Taylor filed the instant petition for a writ of habeas corpus. The district court denied Taylor’s petition, but on different grounds from those on which the state circuit court had relied. The district court concluded that the circuit court’s emphasis on Barker was misplaced, and that subsequent decisions had clarified that a defendant who voluntarily enters into an informal immunity agreement is only protected to the extent established in the agreement itself. The district court thus looked to Taylor’s agreement to determine the extent of Taylor’s immunity from the use of his statements to impeach him in state court. Finding that by its plain terms the agreement did not bind state prosecutors or state courts, the district court rejected Taylor’s petition. Taylor now appeals, presenting two grounds for setting aside his conviction. First, Taylor claims that because he testified at the Bancoshares trial in exchange for the promise of governmental benefits, his testimony was per se “involuntary” and is thus inadmissible against him under the Due Process Clause of the Fourteenth Amendment. Second, Taylor claims that he was entitled to use immunity in state court under the terms of his informal immunity agreement with the United States Attorney, and that the circuit court therefore denied him due process by failing to enforce the agreement. Because we find neither of Taylor’s arguments convincing, we affirm the district court’s denial of habeas corpus relief. II. A. Taylor first argues that his Bancoshares testimony was “involuntary” and thus inadmissible against him at his state trial. See Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290 (1978) (holding that a defendant’s involuntary statements could not be used to impeach his credibility at trial because “any criminal trial use against a defendant of his involuntary statement is a denial of due process of law”). He asks us to hold that testimony, such as his Bancoshares testimony, that is given in exchange for a governmental promise" }, { "docid": "22113000", "title": "", "text": "Georgia, supra, 428 U.S. at 198 n. 50, 96 S.Ct. 2937 n. 50, (opinion of Stewart, Powell, and Stevens, JJ.), which Furman did not. Id. Nevertheless, we cannot say with assurance that the petitioner’s allegation was answered in Gregg, Proffitt, or Jurek, so we must look further. Spenkelink’s contention is without merit for several reasons. First, in Florida a defendant may be sentenced to death whether he pleads guilty or not guilty. E. g., Surace v. State, 351 So.2d 702 (Fla.1977); Thompson v. State, 351 So.2d 701 (Fla.1977); Lamadline v. State, 303 So.2d 17 (Fla.1974). United States v. Jackson, supra, therefore, is inapplicable to the petitioner’s contention because there the condemned statute provided in effect that a defendant could receive the death penalty only if he pleaded not guilty and went to trial. See note 29 supra and accompanying text. Second, the Supreme Court in Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 669, 54 L.Ed.2d 604 (1978), recently held that plea-bargaining, in which the prosecutor openly presents a defendant with the unpleasant alternatives of pleading guilty to a lesser charge and foregoing trial or pleading not guilty and facing a more serious charge on which he plainly is subject to prosecution, and for which he would receive upon conviction life imprisonment, does not violate the Due Process Clause of the Fourteenth Amendment. The fact that the prosecutor’s plea-bargaining tool in Bordenkircher was life imprisonment and in this case it allegedly is the death penalty is a distinction without a difference. Bordenkircher controls the instant case. See, e. g., Montgomery v. Estelle, 5 Cir., 1978, 568 F.2d 457. Finally, it is well settled that a plea bargain is not invalid per se because it is induced by fear of receiving the death penalty or because in agreeing to the plea bargain the defendant averts the possibility of receiving the death penalty. See, e. g., Brady v. United States, 397 U.S. 742, 747, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970). Thus, if Florida prosecutors actually are using the threat of the death penalty under Section 921.141 in their" }, { "docid": "2359688", "title": "", "text": "non-criminal conference or interview when criminal prosecution was, as here, eminently predictable and without advising the ‘target’ of the investigator’s role and purpose.” We reverse. DISCUSSION The government’s sole contention on appeal is that the district court erred in suppressing statements made by the defendant Okwumabua to Agent Howard on June 6, 1985. In support of its position, the government asserts that there were no affirmative misrepresentations by the three agents and that Okwumabua’s statements were voluntary. “When such a claim [of involuntariness] is raised, it is the duty of an appellate court ... ‘to examine the entire record and make an independent determination of the ultimate issue of voluntariness.’ ” Beckwith v. United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1 (1976) (quoting Davis v. North Carolina, 384 U.S. 737, 741-42, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966)). We have previously stated that the test of voluntariness [of a confession] is whether an examination of all the circumstances discloses that the conduct of “law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not free ly self-determined____” Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961). United States v. Mast, 735 F.2d 745, 749 (2d Cir.1984) (citations omitted). There are various factors to be considered in making a determination of voluntariness — they include the type and length of questioning, the defendant’s physical and mental capabilities, and the government’s method of interrogation. Id. After examining the totality of the circumstances, we conclude that the free will of the defendant was not overborne. United States v. Washington, 431 U.S. 181, 188, 97 S.Ct. 1814, 1819, 52 L.Ed.2d 238 (1977). The circumstances in this case do not disclose any overbearing conduct on the part of government agents. There is no evidence that any promises were made to Okwumabua or that he was subjected to any threats, physical coercion, or protracted interrogation. See Mast, 735 F.2d at 750. It is -undisputed that the interview was non-custodial, and that it occurred at the defendant’s place" }, { "docid": "7438097", "title": "", "text": "plainly subject to prosecution----” Id. at 365, 98 S.Ct. at 669. The Court emphasized that the prosecutor’s promise of leniency would not have rendered a plea given in exchange for that promise involuntary, see id. at 363, 98 S.Ct. at 668 (“[Ajceeptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process.”), and specifically rejected a “rigid rule” that would preclude a prosecutor from using the promise of governmental benefits to “induce a guilty plea.” See id. at 364-65, 98 S.Ct. at 669. We believe that Bordenkircher applies equally to an agreement under which a defendant agrees to waive his right to trial and all attendant rights by pleading guilty (the classic plea bargain), and to an agreement, such as Taylor’s informal immunity agreement, under which a potential defendant agrees to waive his right against self-incrimination by not invoking his Fifth Amendment privilege. In both contexts — the plea bargain and the immunity agreement — the defendant or potential defendant seeks benefits he is otherwise unentitled to under the law; in return, he promises to forgo something to which he is entitled. These are “give-and-take” situations akin to a contractual negotiation, in which the parties are negotiating at arms-length. See Parker v. North Carolina, 397 U.S. 790, 809, 90 S.Ct. 1474, 1479, 25 L.Ed.2d 785 (1970) (Brennan, J., dissenting) (characterizing a plea bargain as a “give-and-take negotiation ... between the prosecution and defense, which arguably possess relatively equal bargaining power”). They are not the type of situations in which the danger that the defendant’s “will [will be] overborne,” Rogers, 365 U.S. at 544, 81 S.Ct. at 741, is so great that a per se rule is necessary to prevent the possibility. Thus, we conclude that Bordenkircher precludes a per se involuntariness rule for informal immunity agreements as well as for plea bargains. Cf. Trammel v. United States, 445 U.S. 40, 53, 100 S.Ct. 906, 914, 63 L.Ed.2d 186 (1980) (holding without discussion that fact that witness" }, { "docid": "7438099", "title": "", "text": "spouse testified against defendant “after a grant of immunity and assurances of lenient treatment does not render [spouse’s] testimony involuntary,” and citing Borden-kircher). Moreover, we believe the case Taylor cites as support for his proposed per se rule, Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), is inapposite. The Bram Court stated in dicta that “a confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight____” Taylor argues that the Court’s use of the words “however slight” is evidence that governmental promises in the immunity context render consequential statements involuntary, no matter what the surrounding circumstances. See also Shotwell, 371 U.S. at 348, 83 S.Ct. at 453-54 (stating in dicta that “[petitioners’ position is not like that of a person ... to whom a policeman, a prosecutor, or an investigating agency has made a promise of immunity or leniency in return for a statement. In those circumstances an inculpatory statement would be the product of inducement, and thus not an act of free will”). When we examine the facts of Bram, however, it becomes clear that Taylor is incorrect. In Bram, the defendant — the first mate of a merchant vessel who was suspected of murdering the ship’s second mate, the captain, and the captain’s wife — was brought ashore in irons, detained, and strip-searched. See Bram, 168 U.S. at 561-62, 18 S.Ct. at 194. During or after the strip-search, a detective spoke with Bram, and informed him that another member of the crew had accused him of the murders. Id. at 562, 18 S.Ct. at 194. Bram then gave statements to the detective. On these facts, the Bram Court found that Bram’s statements were inadmissible against him at trial, and therefore set aside his conviction on direct appeal. It is clear, however, that what the Court was concerned with was not merely the possible implication of a promise of governmental benefits, but Bram’s overall position with respect to the" }, { "docid": "14945910", "title": "", "text": "been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted. Handsome, 21 U.S.C.M.A. at 333, 45 C.M.R. at 107. Government counsel also points out, however, that, as noted by the Second Circuit in United States v. Ferrara, 377 F.2d 16 (2d Cir.1967), “[t]hat language has never been applied with ... wooden literalness Id. at 17. The Ferrara Court observed that the Supreme Court’s voluntariness test looks at “whether an examination of all the circumstances discloses that the conduct of ‘law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined’ ” [emphasis added] [citations omitted]. Id., quoting Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961). See also, Schneckloth v. Bustamante, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973) (This determination should be reached only after “the Court has assessed the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation”). Such an analysis also comports with the observation of the Court of Military Appeals in United States v. Murphy, 18 M.J. 220 (C.M.A.1984), that, with respect to the voluntariness of a confession, each case must depend on its own proof. In the absence of any recent treatment of a similar issue by the military appellate courts, the Government has cited for our consideration a number of Federal decisions which hold that the mere fact that a law enforcement official told the defendant that he would notify the cognizant authorities of his cooperation does not render the defendant’s confession involuntary. In United States v. Robinson, 698 F.2d 448 (D.C.Cir.1983), it was held that where the defendant claimed that his statement had been elicited because the agent had promised to both inform the prosecutor of his cooperation and not to arrest and charge him that day, the defendant’s will had not" }, { "docid": "23511504", "title": "", "text": "to meet with Petitioner to discuss the proposed plea agreement outside of usual jail visiting hours. The district court made a credibility finding based on testimony and determined that Judge Grisham did not compel family members to force Petitioner to enter a plea, nor did Judge Grisham force Petitioner to plea no contest. Based on our review of the record, the district court’s conclusion that Judge Grisham facilitated the plea discussion without forcing, compelling, or coercing Petitioner’s plea is not clearly erroneous. Because “[t]he constitution does not forbid the moderate type of participation shown here in plea negotiations by state trial judges,” Damiano, 770 F.2d at 2, we hold that Judge Grisham’s involvement in the plea discussion did not coerce Petitioner to plead no contest involuntarily. B. Petitioner next contends his no contest plea was involuntary because his family received benefits under the plea agreement. Specifically, Petitioner argues his plea was involuntary because: (1) the prosecutors threatened to imprison his family unless he pled, and (2) his family urged him to plea so they would not have to go to prison. “The Supreme Court has specifically reserved judgment on ‘the constitutional implications of a prosecutor’s offer during plea bargaining of adverse or lenient treatment for some person other than the accused.’ ” United States v. Pollard, 959 F.2d 1011, 1020 (D.C.Cir.) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 n. 8, 98 S.Ct. 663, 668 n. 8, 54 L.Ed.2d 604 (1978)), cert. denied, — U.S. -, 113 S.Ct. 322, 121 L.Ed.2d 242 (1992). Because “[ajlmost anything lawfully within the power of a prosecutor acting in good faith can be offered in exchange for a guilty plea,” id. at 1021, we have ruled that a plea is not per se involuntary if entered under a plea agreement that includes leniency for a third party. Mosier v. Murphy, 790 F.2d 62, 66 (10th Cir.), cert. denied, 479 U.S. 988, 107 S.Ct. 582, 93 L.Ed.2d 584 (1986); accord United States v. Marquez, 909 F.2d 738, 741 (2d Cir.1990) (citing eases from the First, Fourth, Fifth, Sixth, Seventh, Ninth, and Eleventh Circuits), cert. denied," }, { "docid": "17305564", "title": "", "text": "States v. Ferrara, 377 F.2d 16 (2d Cir.1967), a federal agent told defendant that “if he cooperated with the United States [Attorney] I felt sure he would get out on reduced bail.” Id. at 17. The Second Circuit rejected defendant’s argument that, under Bram, this statementrendered defendant’s confession involuntary: The Bram opinion cites with approval the statement in an English textbook that a confession is not voluntary if “obtained by any direct or implied promises, however slight”. That language has never been applied with the wooden literalness urged upon us by appellant. The Supreme Court has consistently made clear that the test of voluntariness is whether an examination of all the circumstances discloses that the conduct of “law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined * * Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735 [, 741] 5 L.Ed.2d 760 (1961); see Haynes v. State of Washington, 373 U.S. 503, 513, 83 S.Ct. 1336 [1343] 10 L.Ed.2d 513 (1963), quoting Lynumn v. State of Illinois, 372 U.S. 528, 534, 83 S.Ct. 917 [920] 9 L.Ed.2d 922 (1963). 377 F.2d at 17. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961), did not, however, involve a claim that an accused had confessed as a result of promises of leniency or other benefit. In Rogers, the accused alleged that his confession was the result of a threat that his wife would be brought in for questioning if he did not cooperate. Similarly, in Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963), the Court held defendant’s confession involuntary because the police had threatened to hold defendant incommunicado for an extended period of time if he did not confess. Id. at 514, 83 S.Ct. at 1343. In United States v. Robinson, 698 F.2d 448 (D.C.Cir.1982), defendant contended that promises of an FBI agent to inform the prosecutor of defendant’s cooperation, and to delay defendant’s arrest for one day, rendered his statement involuntary. The court rejected defendant’s argument: Under Schneckloth v. Bustamonte," }, { "docid": "16434516", "title": "", "text": "that the “prosecution’s tactics short-circuited the truth-finding process” by requiring Jones to forfeit most of her rights from the start of proceedings. The district court further concluded that plea bargaining requires a “give-and-take” and that no give-and-take had taken place. The government had made “an offer to possibly make an offer — after defendant had forfeited her right against self-incrimination.” Following Jones’s lead, Morris also moved to strike the information in his case. The court granted his motion, incorporating the legal analysis from its order as to Jones. The court was “convinced that the nature of the ‘deal’ offered to Morris was essentially indistinguishable from that of the ‘deal’ offered to Jones.” The government now appeals from the district court’s order striking Morris’s § 851 information. ANALYSIS The Standard of Review. We review due process claims de novo. United States v. Restrepo, 930 F.2d 705, 712 (9th Cir.1991). Due Process. In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the Supreme Court held that a prosecutor’s decision to carry out a threat made during plea discussions does not violate the Due Process Clause. Id. at 358, 98 S.Ct. 663. The prosecutor in Bordenkircher had offered to recommend a five-year sentence if the accused pled guilty to a one-count indictment. If the accused did not plead guilty, the prosecutor threatened to seek an indictment under the state’s habitual criminal act, which would have subjected the accused to the risk of a mandatory life term. The Court reasoned that the prosecutor’s actions did not offend due process because the prosecutor had “no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution.” Id. at 365, 98 S.Ct. 663. Bordenkircher controls, and it is indistinguishable from the instant case. As in Bordenkircher, the government gave Morris the choice to plead guilty or face the possibility of much greater punishment based on his prior conviction. In both cases, the accused had lawyers to help them understand the consequences of the government’s offers. See id. at" }, { "docid": "22113001", "title": "", "text": "alternatives of pleading guilty to a lesser charge and foregoing trial or pleading not guilty and facing a more serious charge on which he plainly is subject to prosecution, and for which he would receive upon conviction life imprisonment, does not violate the Due Process Clause of the Fourteenth Amendment. The fact that the prosecutor’s plea-bargaining tool in Bordenkircher was life imprisonment and in this case it allegedly is the death penalty is a distinction without a difference. Bordenkircher controls the instant case. See, e. g., Montgomery v. Estelle, 5 Cir., 1978, 568 F.2d 457. Finally, it is well settled that a plea bargain is not invalid per se because it is induced by fear of receiving the death penalty or because in agreeing to the plea bargain the defendant averts the possibility of receiving the death penalty. See, e. g., Brady v. United States, 397 U.S. 742, 747, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970). Thus, if Florida prosecutors actually are using the threat of the death penalty under Section 921.141 in their plea-bargaining to induce guilty pleas, the practice is permissible, and the petitioner’s contention is without merit. 3. Spenkelink’s third attack on Section 921.141 is that the statute contains unreliable procedures and standards for determining aggravating circumstances. First, the petitioner contends that the indictment alleged no aggravating circumstances, and no other form of notice informing him of the aggravating circumstances on which the State would rely in seeking the death penalty, or which the trial court would consider in imposing it, was given to him prior to the sentencing proceeding. According to the petitioner, this violated his right under Fourteenth Amendment due process and his right under the Sixth and Fourteenth Amendments to be informed of the nature of the charges against him, and hindered his preparation for the rebuttal of the aggravating circumstances found in his case. This contention is without merit. Spenkelink cites no case, federal or state, which requires the prosecutor to list in the indictment the aggravating circumstances on which he will rely in seeking the death penalty. Whether such a requirement" }, { "docid": "7438111", "title": "", "text": "not apply a per se rule to hold that Bram's statements were involuntary, but engaged in a totality of the circumstances analysis, concluding that “when all the surrounding circumstances are considered in their true relations, ... the claim that the statement was voluntary [is] overthrown.” Bram, 168 U.S. at 562, 18 S.Ct. at 194. . We have found one case in our own circuit that appears to support Taylor’s argument. In Gunsby v. Wainwright, 596 F.2d 654 (5th Cir.1979) (In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981), a panel of our court held that a defendant’s deposition testimony made \"as a result of” plea bargain promises was \"legally involuntary and inadmissible at [the defendant's] state trial.\" Gunsby, 596 F.2d at 656. Importantly, the government entity that sought to use the witness’ testimony against him in Gunsby (the state of Florida) had previously promised not to use the testimony against him pursuant to a plea bargain. When the witness gave different testimony than he had agreed to under the plea bargain, the State declared the bargain null and void and sought to introduce the witness' testimony against him at trial. The Gunsby court held that the State was barred from doing so. Taylor would interpret Gunsby to stand for the proposition that any testimony given in exchange for benefits under an immunity agreement is involuntary and therefore inadmissible. In light of Bordenkircher, however, we believe that Guns-by stands for an entirely different proposition— that the government may not profit from a witness’ change of heart; a witness who, in good faith, testifies under what he believes is an intact agreement, may not later be harmed by that testimony if the agreement falls apart. This \"rule” is akin to the rule in a plea bargain situation that an otherwise valid plea given in exchange for an unfulfilled or unfulfillable promise is considered “involuntary.\" See United States v. Hill, 564 F.2d 1179, 1180 (5th Cir.1977) (holding that" }, { "docid": "22958129", "title": "", "text": "coercion and was therefore admissible. On the voir dire a federal agent testified he had told appellant “if he cooperated with the United States [Attorney] I felt sure he would get out on reduced^bail.” Ferrara argues that the agent’s “promise” renders his confession involuntary as a matter of law. Ferrara relies on Bram v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897). The Bram opinion cites with approval the statement in an English textbook that a confession is not voluntary if “obtained by any direct or implied promises, however slight”. That language has never been applied with the wooden literalness urged upon us by appellant. The Supreme Court has consistently made clear that the test of voluntariness is whether an examination of all the circumstances discloses that the conduct of “law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined * * Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961); see Haynes v. State of Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963), quoting Lynumn v. State of Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963). There can be no doubt in the present case that defendant’s statement was voluntary. Before the interview began the Assistant United States Attorney informed Ferrara, who was not uninitiated in the criminal law and who had two previous convictions, of all his rights, including his right to counsel and his right to remain silent. He was not subjected to any protracted interrogation nor was he threatened in any way. We hold that the agent’s comment was not the kind of inducement or promise that would, by itself, make the confession involuntary. Appellant also contends that the trial judge erred in instructing the jury concerning the permissible statutory inference of 21 U.S.C. § 174 (set out in full in footnote 1, supra). The court’s initial charge on this question involved the substantive count against appellant’s codefendant, and correctly stated that under Section 174 “in" }, { "docid": "7438095", "title": "", "text": "of immunity is per se involuntary. As we explain in part II.A.1, we decline to do so. A voluntarily-entered informal immunity agreement does not, by virtue of its existence, override a witness’ free will such that the witness’ testimony is involuntary under the Due Process Clause. See Shotwell Mfg. Co. v. United States, 371 U.S. 341, 348, 83 S.Ct. 448, 453, 9 L.Ed.2d 357 (1963) (“A coerced confession claim, whether founded on a promise of immunity or otherwise, always involves this question: did the governmental conduct complained of ‘bring about’ a confession ‘not freely self-determined’?” (citation omitted)). Because we find in part II.A.2 that Taylor’s testimony is not otherwise involuntary, his first argument fails. 1. We determine whether a defendant’s statement is “involuntary” under a “totality of the circumstances” test, United States v. Washington, 431 U.S. 181, 188, 97 S.Ct. 1814, 1818, 52 L.Ed.2d 238 (1977), which is based on findings of fact. See generally Rogers v. Richmond, 365 U.S. 534, 544-48, 81 S.Ct. 735, 741-43, 5 L.Ed.2d 760 (1961). Taylor, however, urges us to adopt a per se rule under which testimony given in exchange for a governmental promise of immunity is involuntary, regardless of the surrounding circumstances. We find no support for such a rule; in fact, we believe that the Supreme Court has already spoken against it. In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the Court specifically rejected a per se involuntariness rule in a plea bargain context. The petitioner in Bordenkircher contended that the prosecutor threatened to indict him under a repeat offender statute if he did not plead guilty to a lesser offense, and then carried out the threat. The petitioner claimed that by behaving this way, the prosecutor had “punished” him for exercising his right to demand a trial, and that he had therefore been denied his right to due process of law. The Supreme Court, however, rejected the petitioner’s claim, holding that the prosecutor had “no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was" }, { "docid": "17305565", "title": "", "text": "v. State of Illinois, 372 U.S. 528, 534, 83 S.Ct. 917 [920] 9 L.Ed.2d 922 (1963). 377 F.2d at 17. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961), did not, however, involve a claim that an accused had confessed as a result of promises of leniency or other benefit. In Rogers, the accused alleged that his confession was the result of a threat that his wife would be brought in for questioning if he did not cooperate. Similarly, in Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963), the Court held defendant’s confession involuntary because the police had threatened to hold defendant incommunicado for an extended period of time if he did not confess. Id. at 514, 83 S.Ct. at 1343. In United States v. Robinson, 698 F.2d 448 (D.C.Cir.1982), defendant contended that promises of an FBI agent to inform the prosecutor of defendant’s cooperation, and to delay defendant’s arrest for one day, rendered his statement involuntary. The court rejected defendant’s argument: Under Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973), the court must look to see if the confession is “the product of an essentially free and unconstrained choice by its maker.” The confession may not be “extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence.” Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 203, 50 L.Ed.2d 194 (1976) (brackets in original), quoting Bram v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897). This determination must be reached in light of the “totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, supra, 412 U.S. at 226, 93 S.Ct. at 2047. Robinson’s statement is clearly voluntary under this test. Looking at the factors established by this circuit in Pettyjohn v. United States, 419 F.2d 651 (D.C.Cir.), cert. denied, 397 U.S. 1058, 90 S.Ct. 1383, 25 L.Ed.2d" }, { "docid": "22987318", "title": "", "text": "rule excluding all possibility that a defendant’s representations at the time of his guilty plea were so much the product of such factors as misunderstanding, duress, or misrepresentation as to make that plea a constitutionally inadequate basis for imprisonment); Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) (guilty plea held involuntary because defendant was unaware of the elements of the offense to which he pleaded guilty). While continuing to protect the rights of defendants who plead guilty, the Supreme Court, in recent cases, has further extended the outer limits of permissible plea bargaining practices. Bordenkircher v. Hayes, 434 U.S. 357,98 S.Ct. 663,54 L.Ed.2d 604 (1978), significantly strengthens the bargaining position of prosecutors seeking guilty pleas. The prosecutor in Bordenkircher offered to recommend a five year prison sentence if defendant Hayes would plead guilt to a forgery indictment. The prosecutor also said that if Hayes did not plead guilty and “save the court the inconvenience and necessity of a trial,” he would seek to reindict Hayes under the state’s habitual offender act, subjecting Hayes to a mandatory sentence of life imprisonment by reason of his two prior felony convictions. 434 U.S. at 358, 98 S.Ct. at 665. Hayes chose to stand trial, and the prosecutor carried out his threat. The Supreme Court found no due process violation in the fulfillment of the prosecutor’s threat: the decision to reindict Hayes as a habitual offender was simply a legitimate use of available leverage in the plea bargaining process. The prosecutor was not punishing the defendant for exercising his rights; rather, he was presenting Hayes with a permissible range of choices that face any accused contemplating a guilty plea-the certainty of a lesser punishment or the possibility of more severe punishment. Said the Court: [I]n the “give-and-take” of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer. * * * * * * Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is" }, { "docid": "22987317", "title": "", "text": "knowing and if it was induced by promises, the essence of those promises must in some way be made known. There is, of course, no absolute right to have a guilty plea accepted. Lynch v. Overholser, 369 U.S. 705, 719 [82 S.Ct. 1063, 1072, 8 L.Ed.2d 211] (1962); Fed.Rule Crim.Proc. 11. A court may reject a plea in exercise of sound judicial discretion.- This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. 404 U.S. at 261-62, 92 S.Ct. at 498-99 (footnotes omitted). See also Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 736 (1977) (federal courts cannot adopt a per se rule excluding all possibility that a defendant’s representations at the time of his guilty plea were so much the product of such factors as misunderstanding, duress, or misrepresentation as to make that plea a constitutionally inadequate basis for imprisonment); Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) (guilty plea held involuntary because defendant was unaware of the elements of the offense to which he pleaded guilty). While continuing to protect the rights of defendants who plead guilty, the Supreme Court, in recent cases, has further extended the outer limits of permissible plea bargaining practices. Bordenkircher v. Hayes, 434 U.S. 357,98 S.Ct. 663,54 L.Ed.2d 604 (1978), significantly strengthens the bargaining position of prosecutors seeking guilty pleas. The prosecutor in Bordenkircher offered to recommend a five year prison sentence if defendant Hayes would plead guilt to a forgery indictment. The prosecutor also said that if Hayes did not plead guilty and “save the court the inconvenience and necessity of a trial,” he would seek to reindict Hayes under the state’s habitual offender" }, { "docid": "7438094", "title": "", "text": "benefits, his testimony was per se “involuntary” and is thus inadmissible against him under the Due Process Clause of the Fourteenth Amendment. Second, Taylor claims that he was entitled to use immunity in state court under the terms of his informal immunity agreement with the United States Attorney, and that the circuit court therefore denied him due process by failing to enforce the agreement. Because we find neither of Taylor’s arguments convincing, we affirm the district court’s denial of habeas corpus relief. II. A. Taylor first argues that his Bancoshares testimony was “involuntary” and thus inadmissible against him at his state trial. See Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290 (1978) (holding that a defendant’s involuntary statements could not be used to impeach his credibility at trial because “any criminal trial use against a defendant of his involuntary statement is a denial of due process of law”). He asks us to hold that testimony, such as his Bancoshares testimony, that is given in exchange for a governmental promise of immunity is per se involuntary. As we explain in part II.A.1, we decline to do so. A voluntarily-entered informal immunity agreement does not, by virtue of its existence, override a witness’ free will such that the witness’ testimony is involuntary under the Due Process Clause. See Shotwell Mfg. Co. v. United States, 371 U.S. 341, 348, 83 S.Ct. 448, 453, 9 L.Ed.2d 357 (1963) (“A coerced confession claim, whether founded on a promise of immunity or otherwise, always involves this question: did the governmental conduct complained of ‘bring about’ a confession ‘not freely self-determined’?” (citation omitted)). Because we find in part II.A.2 that Taylor’s testimony is not otherwise involuntary, his first argument fails. 1. We determine whether a defendant’s statement is “involuntary” under a “totality of the circumstances” test, United States v. Washington, 431 U.S. 181, 188, 97 S.Ct. 1814, 1818, 52 L.Ed.2d 238 (1977), which is based on findings of fact. See generally Rogers v. Richmond, 365 U.S. 534, 544-48, 81 S.Ct. 735, 741-43, 5 L.Ed.2d 760 (1961). Taylor, however, urges us to" }, { "docid": "7438096", "title": "", "text": "adopt a per se rule under which testimony given in exchange for a governmental promise of immunity is involuntary, regardless of the surrounding circumstances. We find no support for such a rule; in fact, we believe that the Supreme Court has already spoken against it. In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the Court specifically rejected a per se involuntariness rule in a plea bargain context. The petitioner in Bordenkircher contended that the prosecutor threatened to indict him under a repeat offender statute if he did not plead guilty to a lesser offense, and then carried out the threat. The petitioner claimed that by behaving this way, the prosecutor had “punished” him for exercising his right to demand a trial, and that he had therefore been denied his right to due process of law. The Supreme Court, however, rejected the petitioner’s claim, holding that the prosecutor had “no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution----” Id. at 365, 98 S.Ct. at 669. The Court emphasized that the prosecutor’s promise of leniency would not have rendered a plea given in exchange for that promise involuntary, see id. at 363, 98 S.Ct. at 668 (“[Ajceeptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process.”), and specifically rejected a “rigid rule” that would preclude a prosecutor from using the promise of governmental benefits to “induce a guilty plea.” See id. at 364-65, 98 S.Ct. at 669. We believe that Bordenkircher applies equally to an agreement under which a defendant agrees to waive his right to trial and all attendant rights by pleading guilty (the classic plea bargain), and to an agreement, such as Taylor’s informal immunity agreement, under which a potential defendant agrees to waive his right against self-incrimination by not invoking his Fifth Amendment privilege. In both contexts — the plea bargain and" } ]

[ { "docid": "22669887", "title": "", "text": "function. 1 Harper & James 305; Yaselli v. Goff, 12 F. 2d, at 404. Judicial immunity had always been extended to grand jurors with respect to their actions in returning an indictment, id., at 403, and “ ‘the public prosecutor, in deciding whether a particular prosecution shall be instituted . . . performs much the same function as a grand jury.’ ” Id., at 404, quoting Smith v. Parman, 101 Kan. 115, 165 P. 633 (1917). The analogy to judicial immunity is a strong one; Moreover, the risk of injury to the judicial process from a rule permitting malicious prosecution suits against prosecutors is real. There is no one to sue the prosecutor for an erroneous decision not to prosecute. If suits for malicious prosecution were permitted, the prosecutor’s incentive would always be not to bring charges. Moreover, the “fear of being harassed by a' vexatious suit, for acting according to their consciences” would always be the greater “where powerful” men are involved, 1 W. Hawkins, Pleas of the Crown 349 (6th ed. 1787). Accordingly, I agree with the majority that, with respect to suits based on claims that the prosecutor’s decision to prosecute was malicious and without probable cause — at least where there is no independent allegation that the prosecutor withheld exculpatory information from a grand jury or the court, see Part III, infra — the judicial process is better served by absolute immunity than by any other rule. Public prosecutors were also absolutely immune at common law from suits for defamatory remarks made during and relevant to a judicial proceeding, 1 Harper & James §§5.21, 5.22; Yaselli v. Goff, 12 F. 2d, at 402-403; and this immunity was also based on the policy of protecting the judicial process. Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Col. L. Rev. 463 (1909). The immunity was not special to public prosecutors but extended to lawyers accused of making false and defamatory statements, or of eliciting false and defamatory testimony from witnesses; and it applied to suits against witnesses themselves for delivering false and defamatory testimony. 1 Harper & James" } ]

[ { "docid": "23132300", "title": "", "text": "retaliatory investigation claims in Count 7. V. COUNT 8 — FABRICATION OF EVIDENCE AND PRESS STATEMENTS AGAINST BURKE Count 8 is against only Burke. Rehberg alleges Burke violated his “constitutional rights” by (1) “participat[ing] in fabricating evidence”; (2) presenting Paulk’s perjured testimony to the grand jury; and (3) making defamatory statements to the media which “damaged Mr. Rehberg’s reputation.” As a special prosecutor appointed to stand in for Hodges, Burke receives the full scope of absolute prosecutorial immunity and is absolutely immune for Rehberg’s claims of malicious prosecution and the presentation of perjured testimony to a grand jury. For the same reasons explained above, Burke also is absolutely immune for participating in the conspiracy to fabricate Paulk’s grand jury testimony against Rehberg. Burke’s statements to the media, however, are not cloaked in absolute immunity because “[c]omments to the media have no functional tie to the judicial process just because they are made by a prosecutor,” and they are not part of the prosecutor’s role as an advocate of the State. See Buckley, 509 U.S. at 277-78, 113 S.Ct. at 2618 (“The conduct of a press conference does not involve the initiation of a prosecution, the presentation of the state’s case in court, or actions preparatory for these functions”); Hart v. Hodges, 587 F.3d 1288, 1297 (11th Cir.2009). Burke’s immunity for the alleged press statements must arise, if at all, through qualified immunity. A tort claim, such as Rehberg’s defamation allegation in Count 8, does not give rise to a § 1983 due process claim unless there is an additional constitutional injury alleged. Cypress Ins. Co. v. Clark, 144 F.3d 1435, 1438 (11th Cir.1998). “The Supreme Court ... held that injury to reputation, by itself, does not constitute the deprivation of a liberty or property interest protected under the Fourteenth Amendment.” Behrens v. Regier, 422 F.3d 1255, 1259 (11th Cir.2005) (citing Paul v. Davis, 424 U.S. 693, 701-02, 96 S.Ct. 1155, 1160-61, 47 L.Ed.2d 405 (1976)). Damages to a plaintiffs reputation “are only recoverable in a section 1983 action if those damages were incurred as a result of government action significantly" }, { "docid": "1364079", "title": "", "text": "murder, Buckley sued Fitzsimmons, claiming that Fitz-simmons fabricated evidence to obtain the indictment and made false statements about Buckley in a press conference. Id. at 264, 113 S.Ct. 2606. The Court held that Fitzsimmons was not entitled to absolute immunity for either act. Id. at 275-77., 113 S.Ct. 2606 As to the former, the Court held that at the time Fitzsimmons allegedly fabricated the evidence, he had no probable cause to arrest Buckley, no indictment had issued, and no judicial proceedings had begun. Id. at 275-76, 113 S.Ct. 2606. Thus, Fitzsimmons’s actions were purely investigatory and not entitled to absolute immunity. Id. As to the latter, the Court noted that at common law, prosecutors were absolutely immune from defamation liability for in-court statements but received only qualified immunity for out-of-court statements. Id. at 277, 113 S.Ct. 2606. Accordingly, Fitzsimmons was not entitled to absolute immunity for his public statements falsely implicating Buckley. Id. Finally, in Kalina v. Fletcher, the Court again parsed the actions of prosecutor Ka- lina to decide whether she was entitled to absolute immunity. 522 U.S. 118, 120, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997). Kalina filed three documents to initiate a burglary prosecution of Fletcher, who allegedly stole computer equipment from a school. Id. at 120-21, 118 S.Ct. 502. The first two documents — an information and a motion for an arrest warrant — were unsworn. Id. at 121, 118 S.Ct. 502. The third — a “Certification for Determination of Probable Cause” — was a sworn document containing two false statements. Id. As Fletcher was arrested and jailed before the charges against him were dismissed, he sued Kali-na based on her misstatements in the Certification, and Kalina asserted absolute immunity. Id. The Court held that Kalina’s acts of (1) filing the information and (2) filing the motion for an arrest warrant were protected by absolute immunity, id. at 129, 118 S.Ct. 502, but her act of (3) “personally attesting to the truth of the averment” in the Certification was non-prosecutorial because it could have been performed by any competent witness. Id. at 129-30, 118 S.Ct. 502." }, { "docid": "22641151", "title": "", "text": "the alleged fabrication of false evidence concerning the bootprint that a special grand jury was empaneled. And when it finally was convened, its immediate purpose was to conduct a more thorough investigation of the crime — not to return an indictment against a suspect whom there was already probable cause to arrest. Buckley was not arrested, in fact, until 10 months after the grand jury had been convened and had finally indicted him. Under these circumstances, the prosecutors’ conduct occurred well before they could properly claim to be acting as advocates. Respondents have not cited any authority that supports an argument that a prosecutor’s fabrication of false evidence during the preliminary investigation of an unsolved crime was immune from liability at common law, either in 1871 or at any date before the enactment of §1983. It therefore remains protected only by qualified immunity. After Burns, it would be anomalous, to say the least, to grant prosecutors only qualified immunity when offering legal advice to police about an unarrested suspect, but then to endow them with absolute immunity when conducting investigative work themselves in order to decide whether a suspect may be arrested. That the prosecutors later called a grand jury to consider the evidence this work produced does not retroactively transform that work from the administrative into the prosecutorial. A prosecutor may not shield his investigative work with the aegis of absolute immunity merely because, after a suspect is eventually arrested, indicted, and tried, that work may be retrospectively described as “preparation” for a possible trial; every prosecutor might then shield himself from liability for any constitutional wrong against innocent citizens by ensuring that they go to trial. When the functions of prosecutors and detectives are the same, as they were here, the immunity that protects them is also the same. B We next consider petitioner’s claims regarding Fitzsimmons’ statements to the press. Petitioner alleged that, during the prosecutor’s public announcement of the indictment, Fitzsimmons made false assertions that numerous pieces of evidence, including the bootprint evidence, tied Buckley to a burglary ring that committed the Nicarico murder. App. 12." }, { "docid": "7119307", "title": "", "text": "Buckley v. Fitzsimmons, 509 U.S. 259, 261, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). In Buckley, the Court was faced with determining whether a prosecutor was absolutely immune from liability on claims of fabricating evidence during the preliminary investigation of a crime, and for making false statements at a press conference announcing the return of an indictment in relation to the murder of an eleven year-old girl. Id. at 261, 113 S.Ct. 2606. Preliminarily, the Supreme Court recognized that 18 U.S.C. section 1983 provides qualified immunity for public officials, such that those officials will not be subject to liability “for the performance of their discretionary functions when ‘their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Id. at 268, 113 S.Ct. 2606 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The Court went on to recognize, however, that certain officials who perform “special functions” are entitled to absolute immunity for those functions, though the burden is upon the official seeking absolute immunity to show that “such immunity is justified for the function in question.” Id. at 269, 113 S.Ct. 2606 (quoting Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991)). The Court recognized that there exists a rule of absolute immunity for conduct of prosecutors for conduct “intimately associated with the judicial phase of the criminal process.” Id. at 270, 113 S.Ct. 2606 (citing Imbler v. Pachtman, 424 U.S. 409, 424, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)). Thus, a prosecutor is absolutely immune from liability “in initiating a prosecution and in presenting the State’s case.” Id. at 270, 113 S.Ct. 2606 (citing Imbler, 424 U.S. at 431, 96 S.Ct. 984). With regard to the defamation allegation against the Buckley prosecutor, wherein the prosecutor allegedly made false and prejudicial statements against the suspect, the Supreme Court found that the statements were not entitled to absolute immunity: “Comments to the media have no functional tie to the judicial process just because they are made by a prosecutor. At" }, { "docid": "1010031", "title": "", "text": "Bess at the time of the initial investigation, and those officers were unable even to obtain a search warrant, let alone an indictment for murder. Cf. Buckley v. Fitzsimmons, 509 U.S. 259, 261-62, 274-75, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) (holding that a prosecutor was not entitled to absolute prosecutorial immunity where, after a special grand jury initially declined to return an indictment following an eight-month investigation, the prosecutor called a press conference at which he made statements falsely implicating the petitioner and then sought and received an indictment against the petitioner despite lacking any new evidence to support a finding of probable cause). We also note that, while Defendants made other arguments, they chose to focus at oral argument on the factual issues in this case. Even though the Kentucky Court of Appeals credited Jarrell’s confession as evidence of King’s innocence, for example, Defendants referred to the confession as “false” and strongly implied that the court of appeals committed error in vacating King’s plea. Defense counsel further chose to argue that Jarrell could not have killed Breeden for various reasons, disputed whether Harwood had discussed with the KSP forensics officer the copper wash or copper jacket on the bullets that were recovered from King’s home and Breeden’s skull, and argued that King indeed had a prosthetic leg at the time of Breeden’s murder. Though our ultimate ruling is based on the written record, Defendants’ arguments at oral argument re- fleet just how much of the dispute before us consists of contested facts. Summary judgment is therefore inappropriate for disposing of King’s malicious-prosecution claim against Harwood. We therefore hold that the district court erred in granting summary judgment for Harwood on the issue of Harwood’s qualified immunity from suit. VIII. Absolute Immunity Does Not Bar King’s Suit A. Absolute Immunity for Grand-Jury Witnesses Although not developed extensively below, Defendants raised in their motion to dismiss and their brief on appeal — and King conceded at oral argument — the relevance of Rehberg v. Paulk, 566 U.S. 356, 132 S.Ct. 1497, 182 L.Ed.2d 593 (2012), which extends absolute immunity, rather" }, { "docid": "22641133", "title": "", "text": "Fitzsimmons, whose police officers and assistant prosecutors were performing essentially the same investigatory functions. Thereafter, having failed to obtain sufficient evidence to support petitioner’s (or anyone else’s) arrest, respondents convened a special grand jury for the sole purpose of investi gating the Nicarico case. After an 8-month investigation, during which the grand jury heard the testimony of over 100 witnesses, including the bootprint experts, it was still unable to return an indictment. On January 27, 1984, respondent Fitzsimmons admitted in a public statement that there was insufficient evidence to indict anyone for the rape and murder of Jeanine Nicarico. Although no additional evidence was obtained in the interim, the indictment was returned in March, when Fitzsimmons held the defamatory press conference so shortly before the primary election. Petitioner was then arrested, and because he was unable to meet the bond (set at $3 million), he was held in jail. Petitioner’s trial began 10 months later, in January 1985. The principal evidence against him was provided by Robbins, the North Carolina anthropologist. Because the jury was unable to reach a verdict on the charges against petitioner, the trial judge declared a mistrial. Petitioner remained in prison for two more years, during which a third party confessed to the crime and the prosecutors prepared for petitioner’s retrial. After Robbins died, however, all charges against him were dropped. He was released, and filed this action. II We are not concerned with petitioner’s actions against the police officers (who have asserted the defense of qualified immunity), against the expert witnesses (whose trial testimony was granted absolute immunity by the District Court, App. 53-57), and against Du Page County (whose motion to dismiss on other grounds was granted in part, id., at 57-61). At issue here is only the action against the prosecutors, who moved to dismiss based on their claim to absolute immunity. The District Court held that respondents were entitled to absolute immunity for all claims except the claim against Fitzsimmons based on his press conference. Id., at 53. With respect to the claim based on the alleged fabrication of evidence, the District" }, { "docid": "11304589", "title": "", "text": "immunity is designed to free the judicial process from the harassment and intimidation associated with litigation. That concern therefore justifies absolute prosecu-torial immunity only for actions that are connected with the prosecutor’s role in judicial proceedings, not for every litigation-inducing conduct.” Id. at 494, 111 S.Ct. at 1943-44. The Court warned that “[a]lmost any action by a prosecutor, including his or her direct participation in purely investigative activity, could be said to be in some way related to the ultimate decision whether to prosecute, but we have never indicated that absolute immunity is that expansive.” Id. at 495, 111 S.Ct. at 1944. Most recently, the Court discussed the scope of absolute prosecutorial immunity in Buckley v. Fitzsimmons, — U.S.-, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). There, the Court reaffirmed that “as the function test of Imbler recognizes, the actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor.” Id. at-, 113 S.Ct. at 2615. Advoca-tory conduct protected by absolute immunity “inelude[s] the professional evaluation of the evidence assembled by the police and appropriate preparation for its presentation at trial or before a grand jury after a decision to seek an indictment has been made.” Id. But when a prosecutor “performs the investigative functions normally performed by a detective or police officer,” he is entitled only to the qualified immunity that the detective or police officer enjoys. Id. at -, 113 S.Ct. at 2616-17. In Buckley, the petitioner alleged that the prosecutors fabricated evidence during the preliminary investigation of a crime and made false statements at a press conference announcing the indictment of the petitioner. The Court held that the prosecutors did not have absolute immunity from liability for the alleged fabrication of evidence because they did not have probable cause to arrest or to initiate judicial proceedings. Id. at-, 113 S.Ct. at 2616. “Their mission at that time was entirely investigative in character. A prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.” Id. The Court emphasized that the alleged fabrication occurred" }, { "docid": "21688192", "title": "", "text": "verifying that an Order of Protection had in fact been issued in favor of Buchanan. Certainly officers of reasonable competency could disagree on whether, based on these facts, the probable cause test was met. Accordingly, even if there is no actual probable cause in this case, there is “arguable” probable cause that entitles Deputies Langley and Nalbone to qualified immunity- ill. Defendant Charbonneau A. Absolute Immunity Prosecutors facing individual capacity liability can claim absolute or qualified immunity. In assessing a prosecutor’s claim of absolute immunity, the court must inquire whether the actions in question are part of a prosecutor’s traditional function and whether they are closely associated with the judicial process. Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir.1996). Absolute prosecutorial immunity is generally limited to litigation-related activities and decisions whether to prosecute. Ying Jing Gan v. City of New York, 996 F.2d 522, 530 (2d Cir.1993); Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). For example, a prosecutor is often immune from liability when evaluating and organizing evidence for presentation to a grand jury. Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). In addition, the actual presentation of evidence to a grand jury after a decision to seek an indictment has been made falls squarely within the prosecutor’s traditional function. Id. By contrast, absolute immunity is not available when a prosecutor undertakes conduct that is beyond the scope of his or her litigation-related duties. Thus, when a prosecutor acts in an investigative or administrative capacity rather than in a prosecutorial one, absolute immunity is not available. Hill v. City of New York, 45 F.3d 653, 661 (2d Cir.1995). For example, immunity is not available when a prosecutor releases information or evidence to the media, Buckley, 509 U.S. at 276-78, 113 S.Ct. 2606; Powers v. Coe, 728 F.2d 97, 103 (2d Cir.1984), authorizes or directs the use of wiretaps, Powers, 728 F.2d at 103, or performs the functions normally performed by the police such as assisting in the execution of a search or seizure. See Buckley, 509" }, { "docid": "23132273", "title": "", "text": "at 1367; Rowe, 279 F.3d at 1282; Jones, 174 F.3d at 1289. In Mastroianni, the plaintiff alleged defendant Yeomans, a Georgia Bureau of Investigation agent, “engaged in a pretestimonial conspiracy to present false evidence, for which neither absolute nor qualified immunity is available.” Mastroianni, 173 F.3d at 1367. This Court first stressed that “a witness has absolute immunity from civil liability based on his grand jury testimony. See Strength, 854 F.2d at 425, relying on Briscoe v. La Hue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96[ ] (1983).” Id. The Mastroianni Court then pointed out that while the plaintiff “contended] that Yeomans committed numerous acts in furtherance of a conspiracy to present false testimony before the grand jury convened, the record itself support[ed] such an inference only if we consider as evidence Yeomans’ testimony as it relates back to Yeomans’ pretestimonial acts and statements.” Mastroianni, 173 F.3d at 1367. In other words, because the only evidence to show a conspiracy in the pre-indictment phase was Yeomans’s later false grand jury testimony, and because Yeomans was immune for that testimony, we concluded that Yeomans was absolutely immune for conspiracy to present or give grand jury testimony. Id. (“Because we may not consider such testimony as a factor upon which to base Yeomans’ potential liability, we conclude that Yeomans is entitled to absolute immunity for his actions in this case”). This Court subsequently applied Mastroianni in Jones and Rowe, in each case concluding that absolute immunity applied equally both to the false testimony itself and to the alleged conspiracies to present false testimony. Jones, 174 F.3d at 1289 (“To allow a § 1983 claim based on subornation of perjured testimony where the allegedly perjured testimony itself is cloaked in absolute immunity would be to permit through the back door what is prohibited through the front”); Rowe, 279 F.3d at 1282 (“It would be cold comfort for a prosecutor to know that he is absolutely immune from direct liability for actions taken as prosecutor, if those same actions could be used to prove him liable on a conspiracy theory involving conduct" }, { "docid": "20597152", "title": "", "text": "grand jury room. For example, we have accorded only qualified immunity to law enforcement officials who falsify affidavits and fabricate evidence concerning an unsolved crime.” Under Rehberg, Officer Carson is immune for grand jury testimony, preparation for that testimony, and any conspiracy to falsely testify. He argues that all of his alleged conduct falls into those categories, but the First Amended Complaint goes further. The Coles allege that Officer Carson made false statements in the course of the initial investigation into the shooting, before a decision had been made by prosecutors to charge Ryan with aggravated assault. The FAC indicates that Carson intended these statements to influ ence the decision to bring charges against Ryan in the first place. An officer who lies to investigating officers in order to try. to get someone charged with a crime — before the decision to charge has been made — is not entitled to absolute testimonial immunity. The Supreme Court has held that a prosecutor is not entitled to absolute immunity when she falsifies an affidavit supporting an arrest warrant. Neither is a police officer who submits an affidavit for a warrant, leading to an arrest without probable cause. Nor are prosecutors absolutely immune when they act alongside police officers to “solve” an unsolved crime by shopping for an unscrupulous expert. Rehberg confirmed that these holdings are still good law. We have likewise held that “non-testimonial pretrial actions, such as the fabrication of evidence, are not within the scope of absolute immunity because they are not part of the trial.” The conduct here — lying to investigators — comes closer to possibly preparing for grand jury testimony than some of the conduct in earlier cases, but the timing and purpose of the statements matter. The Supreme Court and this court have emphasized that absolute immunity for prosecutors, witnesses, and others is based on a need to protect central judicial proceedings. Thus conduct that occurs during investigation to discover probable cause and before the decision to charge has been made is not generally entitled to absolute immunity. Some of the false statements in this" }, { "docid": "20597153", "title": "", "text": "arrest warrant. Neither is a police officer who submits an affidavit for a warrant, leading to an arrest without probable cause. Nor are prosecutors absolutely immune when they act alongside police officers to “solve” an unsolved crime by shopping for an unscrupulous expert. Rehberg confirmed that these holdings are still good law. We have likewise held that “non-testimonial pretrial actions, such as the fabrication of evidence, are not within the scope of absolute immunity because they are not part of the trial.” The conduct here — lying to investigators — comes closer to possibly preparing for grand jury testimony than some of the conduct in earlier cases, but the timing and purpose of the statements matter. The Supreme Court and this court have emphasized that absolute immunity for prosecutors, witnesses, and others is based on a need to protect central judicial proceedings. Thus conduct that occurs during investigation to discover probable cause and before the decision to charge has been made is not generally entitled to absolute immunity. Some of the false statements in this case are alleged to have been this investigation-stage type of conduct. In these circumstances, lying to investigating officers is similar to falsifying a police report, which the Second Circuit recently held is not protected by testimonial immunity. The Second Circuit addressed how to apply Rehberg “when a § 1983 plaintiff alleges that the officer withheld and falsified evidence in addition to committing perjury before the grand jury.” It concluded that testimonial immunity does not bar § 1983 claims that can be made out without reference to the grand jury testimony or preparation for it. As the court explained, “[t]he fact that [defendant’s] grand jury testimony paralleled information he gave in other contexts [such as police reports] does not mean that [the claim] was ‘based on’ [the] grand jury testimony. Rather it was based on [defendant’s] conduct that laid the groundwork for [the] indictment.” So here; the fact that some of Officer Carson’s statements may have been presented to the grand jury can be excised from the complaint and the Coles still make out a case" }, { "docid": "11294376", "title": "", "text": "the Marion County Prosecutors Katz-Crank also brings several federal claims against three Marion County prosecutors in their individual capacities. Prosecutors are protected by robust immunity from federal tort liability, “whether common law or constitutional, ... for acts they commit within the scope of their employment as prosecutors.” Fields v. Wharrie, 740 F.3d 1107, 1110 (7th Cir. 2014) (citations omitted). Katz-Crank’s federal claims against the prosecutors implicate conduct within the scope of this broad immunity. Katz-Crank alleges that the prosecutors (1) indicted her without probable cause; (2) made false and inflammatory public statements in press releases; (3) acted “maliciously”; (4) refused to consider exonerating evidence she tried to give them; (5) presented false evidence to the grand jury; and (6) delayed her trial. Most of these allegations encompass prosecuto-rial acts or omissions for which the Marion County prosecutors enjoy absolute immunity. See Bianchi v. McQueen, 818 F.3d 309, 318 (7th Cir. 2016) (explaining that absolute immunity covers “what goes on in the courtroom” and grand-jury proceedings); id. -(“[I]t’s clear that absolute immunity knocks ... the [plaintiffs] claims premised on allegations that [the prosecutor] presented false statements to the grand jury and at trial.”). The only close call is the allegation about false and inflammatory public statements in press releases, which arguably falls outside the immunity shield. The Supreme Court has held that a prosecutor’s “statements to the media are not entitled to absolute immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 277, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). But a close reading of the complaint reveals that this allegation—made only very generally, without identifying any particular false statement — appears in the complaint’s description of the means by which the defendants conspired to deprive Katz-Crank of her federal rights in violation of § 1983. As we’ll , explain in a moment, the § 1983 conspiracy claim fails because the complaint doesn’t state a claim for any underlying constitutional tort. So even if this particur lar allegation doesn’t fall within the scope of prosecutorial immunity, it does not support a cognizable federal claim for relief. 3. Claims Against the State Officials and" }, { "docid": "11304593", "title": "", "text": "257, 262 (4th Cir.1994) (holding absolute immunity protects prosecutor from liability for failing to give defense counsel materially exculpatory evidence). Valder, however, has not met his burden of establishing that absolute immunity protects him from potential liability for the other instances of misconduct alleged by Moore. Intimidating and coercing witnesses into changing their testimony is not advocatory. It is rather a misuse of investigative techniques legitimately directed at exploring whether witness testimony is truthful and complete and whether the government has acquired all incriminating evidence. It therefore relates to a typical police function, the collection of information to be used in a prosecution. See, e.g., Barbera v. Smith, 836 F.2d 96, 100 (2d Cir.1987) (holding “acquiring evidence which might be used in a prosecution,” in contradistinction to “organization, evaluation, and marshalling\" of such evidence, is activity of “police nature” and is therefore not entitled to absolute protection) (emphasis original). “When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is ‘neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.’ ” Buckley, — U.S. at -, 113 S.Ct. at 2616 (quoting Hampton v. Chicago, 484 F.2d 602, 608 (7th Cir.1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 1414, 39 L.Ed.2d 471 (1974)). Finally, disclosing grand jury testimony to unauthorized third parties is not advo-catory because it has no functional tie to the judicial process — it does not contribute to the government’s ease before a grand or petit jury. Like making statements at a press conference, unauthorized disclosure “does not involve the initiation of a prosecution, the presentation of the state’s case in court, or actions preparatory for these functions.” Buckley, — U.S. at-, 113 S.Ct. at 2618. B. Claims Against the Postal Inspectors The district court dismissed Moore’s claims against the postal inspectors because Moore’s complaint did not allege direct evidence that they acted maliciously or in retaliation for constitutionally protected speech, Reviewing the dismissal de novo and taking the facts as alleged in Moore’s complaint, Kowal, 16 F.3d at 1276, 1273, we affirm" }, { "docid": "22641152", "title": "", "text": "absolute immunity when conducting investigative work themselves in order to decide whether a suspect may be arrested. That the prosecutors later called a grand jury to consider the evidence this work produced does not retroactively transform that work from the administrative into the prosecutorial. A prosecutor may not shield his investigative work with the aegis of absolute immunity merely because, after a suspect is eventually arrested, indicted, and tried, that work may be retrospectively described as “preparation” for a possible trial; every prosecutor might then shield himself from liability for any constitutional wrong against innocent citizens by ensuring that they go to trial. When the functions of prosecutors and detectives are the same, as they were here, the immunity that protects them is also the same. B We next consider petitioner’s claims regarding Fitzsimmons’ statements to the press. Petitioner alleged that, during the prosecutor’s public announcement of the indictment, Fitzsimmons made false assertions that numerous pieces of evidence, including the bootprint evidence, tied Buckley to a burglary ring that committed the Nicarico murder. App. 12. Petitioner also alleged that Fitzsimmons released mug shots of him to the media, “which were prominently and repeatedly displayed on television and in the newspapers.” Ibid. Peti tioner’s legal theory is that “[t]hese false and prejudicial statements inflamed the populace of DuPage County against” him, ibid.; see also id., at 14, thereby defaming him, resulting in deprivation of his right to a fair trial, and causing the jury to deadlock rather than acquit, id., at 19. Fitzsimmons’ statements to the media are not entitled to absolute immunity. Fitzsimmons does not suggest that in 1871 there existed a common-law immunity for a prosecutor’s, or attorney’s, out-of-court statement to the press. The Court of Appeals agreed that no such historical precedent exists. 952 F. 2d, at 967. Indeed, while prosecutors, like all attorneys, were entitled to absolute immunity from defamation liability for statements made during the course of judicial proceedings and relevant to them, see Burns, 500 U. S., at 489-490; Irnbler, 424 U. S., at 426, n. 23; id., at 439 (White, J., concurring in judgment)," }, { "docid": "11304590", "title": "", "text": "by the police and appropriate preparation for its presentation at trial or before a grand jury after a decision to seek an indictment has been made.” Id. But when a prosecutor “performs the investigative functions normally performed by a detective or police officer,” he is entitled only to the qualified immunity that the detective or police officer enjoys. Id. at -, 113 S.Ct. at 2616-17. In Buckley, the petitioner alleged that the prosecutors fabricated evidence during the preliminary investigation of a crime and made false statements at a press conference announcing the indictment of the petitioner. The Court held that the prosecutors did not have absolute immunity from liability for the alleged fabrication of evidence because they did not have probable cause to arrest or to initiate judicial proceedings. Id. at-, 113 S.Ct. at 2616. “Their mission at that time was entirely investigative in character. A prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.” Id. The Court emphasized that the alleged fabrication occurred before a grand jury was convened and that when the grand jury eventually was convened, “its immediate purpose was to conduct a more thorough investigation of the crime — not to return an indictment against a suspect whom there was already probable cause to arrest.” Id. The Court also held that a prosecutor is not absolutely immune from liability for making allegedly false statements to the press because statements to the media “have no functional tie to the judicial process.” Id. at-, 113 S.Ct. at 2618. Applying these holdings here, we conclude that Valder’s prosecutorial immunity insulates him from liability for his unquestionably advocatory decision to prosecute Moore. His prosecutorial immunity also protects Valder from liability for allegedly concealing exculpatory evidence from the grand jury and for allegedly manipulating evidence before the grand jury to create a false impression of what Moore knew about the alleged fraudulent schemes. Valder’s decisions regarding what evidence to put before the grand jury, and in what manner, are advoca-tory because they are central to the prosecutor’s task of “initiating" }, { "docid": "23218799", "title": "", "text": "personally attesting, “petitioner performed an act that any competent witness might have performed,” and was thus not entitled to absolute immunity. Id. at 129-30, 131, 118 S.Ct. 502; accord Morley v. Walker, 175 F.3d 756, 760 (9th Cir.1999) (relying on Kalina in denying absolute immunity to prosecutor who executed oath or affidavit in support of arrest warrant). “Even when the person who makes the constitutionally required ‘Oath or affirmation’ is a lawyer, the only function that she performs in giving sworn testimony is that of a witness.” Kalina, 522 U.S. at 131, 118 S.Ct. 502 (quoting U.S. Const. amend. IV). 3. As Applied to Cooley and Foltz To recap, Milstein’s complaint alleges that Cooley and Foltz: (1) fabricated evidence by recruiting Gutierrez to recant his trial testimony and instead falsely claim that Mil-stein had solicited him to commit perjury; (2) used that false statement as the basis for filing a crime report against Milstein, listing themselves as the complaining witnesses or crime victims; (3) investigated the offense reported in the crime report; (4) secured an indictment by posing as “advisors” to the grand jury; (5) after the indictment was dismissed, secured an information and an arrest warrant by instructing a subordinate (Doe 1) to sign a false criminal complaint; (6) opposed the re-appointment of Mil-stein’s prior counsel; and (7) made false statements to the press. (i)Fabricating Evidence Appellees are not entitled to absolute immunity if one accepts as true the allegations that they knowingly obtained false statements from Gutierrez for the purpose of prosecuting Milstein. Shopping for a dubious expert opinion is fabricating evidence, which is unprotected by absolute immunity. Buckley, 509 U.S. at 276, 113 S.Ct. 2606. It follows, then, that acquiring known false statements from a witness for use in a prosecution is likewise fabricating evidence that is unprotected by absolute immunity. This alleged conduct occurred before the grand jury was empaneled, id. at 275, 113 S.Ct. 2606, before Milstein was arrested, Burns, 500 U.S. at 492, 111 S.Ct. 1934, and it must necessarily have occurred before the existence of probable cause, Buckley, 509 U.S. at 274, 113" }, { "docid": "11304591", "title": "", "text": "before a grand jury was convened and that when the grand jury eventually was convened, “its immediate purpose was to conduct a more thorough investigation of the crime — not to return an indictment against a suspect whom there was already probable cause to arrest.” Id. The Court also held that a prosecutor is not absolutely immune from liability for making allegedly false statements to the press because statements to the media “have no functional tie to the judicial process.” Id. at-, 113 S.Ct. at 2618. Applying these holdings here, we conclude that Valder’s prosecutorial immunity insulates him from liability for his unquestionably advocatory decision to prosecute Moore. His prosecutorial immunity also protects Valder from liability for allegedly concealing exculpatory evidence from the grand jury and for allegedly manipulating evidence before the grand jury to create a false impression of what Moore knew about the alleged fraudulent schemes. Valder’s decisions regarding what evidence to put before the grand jury, and in what manner, are advoca-tory because they are central to the prosecutor’s task of “initiating a prosecution” and “presenting the State’s case.” Imbler, 424 U.S. at 431, 96 S.Ct. at 996; see also Hill v. City of New York, 45 F.3d 653, 661-62 (2nd Cir.1995) (holding absolute immunity protects prosecutor from liability for withholding exculpatory evidence from grand jury). In addition, withholding after indictment information that is subject to disclosure under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), is advocatory. In Imbler, the prosecutor was alleged to have knowingly used false testimony and suppressed material exculpatory evidence at trial. The Court upheld the lower courts’ rulings that the prosecutor was absolutely immune from potential liability for the alleged misconduct. As other courts have recognized, it follows from Imbler that the failure, be it knowing or inadvertent, to disclose material exculpatory evidence before trial also falls within the protection afforded by absolute prosecutorial immunity. See Hill, 45 F.3d at 662 (holding failure to turn over Brady material “after prosecutorial phase” of case had begun was covered by absolute prosecutorial immunity); Carter v. Burch, 34 F.3d" }, { "docid": "11520050", "title": "", "text": "v. City of New York, 45 F.3d 653, 661 (2d Cir.1995) (quoting Dory v. Ryan, 25 F.3d 81, 83 (2d Cir.1994)). For example, in Hill, the Second Circuit held than an Assistant District Attorney’s alleged acts of, inter alia, “conspiring to present falsified evidence to, and to withhold exculpatory evidence from, a grand jury” were “clearly protected by the doctrine of absolute immunity as all are part of his function as an advocate.” Id. at 661. Similarly, the Second Circuit has held that absolute immunity extends to a prosecutor’s “ ‘knowing use of perjured testimony’ and the ‘deliberate withholding of exculpatory information,’ ” even where the prosecutor knowingly prosecutes an innocent person. Shmueli, 424 F.3d at 237-38 (quoting Imbler, 424 U.S. at 431 n. 34, 96 S.Ct. 984). Here, ADA Madey and ADA Higgins clearly have absolute immunity for their alleged failure to inform plaintiff that the felony complaint listed the wrong date of offense, and for their alleged presentation of false evidence to the grand jury. Such actions were taken in their capacities as prosecutors, not investigators. Of course, to the extent it is alleged that ADA Madey questioned Hughlett and coerced a false statement implicating plaintiff, he was assisting police in the investigation of an unsolved robbery. Accordingly, the doctrine of absolute immunity would not shield ADA Madey from liability in a false arrest claim for his participation in allegedly coercing Hughlett to implicate plaintiff. See Buckley v. Fitzsimmons, 509 U.S. 259, 275, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) (absolute immunity does not cover “a prosecutor’s fabrication of false evidence during the preliminary investigation of an unsolved crime”); see also Morse v. Fusto, No. 07-CV-4793 (CBA)(RML), 2013 WL 4647603, at *6 (E.D.N.Y. Aug. 29, 2013) (citing Zahrey v. Coffey, 221 F.3d 342, 353-54 (2d Cir.2000) (“A prosecutor who fabricates evidence in his investigative role, to whom it was reasonably foreseeable that such evidence would later be used in his advocacy role before the grand jury, is equally liable for an ensuing deprivation of liberty.”)). However, as noted supra, because there was probable cause to arrest plaintiff independent" }, { "docid": "23218796", "title": "", "text": "Fitzsimmons, where the Supreme Court denied absolute immunity to prosecutors who were sued for fabricating evidence “during the early stages of the investigation” where “police officers and assistant prosecutors were performing essentially the same investigatory functions.” 509 U.S. at 262-63, 275-76, 113 S.Ct. 2606. The fabrication allegation was that prosecutors, after three expert witnesses could not connect a bootprint to the suspect (the § 1983 plaintiff), “shopped” for the opinion of a particular expert who was well known for her willingness to fabricate unreliable expert testimony. Id. at 262, 113 S.Ct. 2606. In denying absolute immunity, the Court reasoned: There is a difference between the advocate’s role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective’s role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand. When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is “neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.” Id. at 273, 113 S.Ct. 2606 (quoting Hampton v. Chicago, 484 F.2d 602, 608 (7th Cir.1973) (Stevens, J.) (denying absolute immunity for prosecutor who participated in planning and execution of police raid on suspected weapons cache)); Kalina, 522 U.S. at 126, 118 S.Ct. 502; see also Herb Hallman Chevrolet, 169 F.3d at 642 (“A prosecutor may only shield his investigative work with qualified immunity.”). Additionally, the Court announced a line before which absolute immunity could not apply: “A prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.” Buckley, 509 U.S. at 274, 113 S.Ct. 2606. Accordingly, the Court noted that the alleged fabrication occurred well before the grand jury was empaneled. Id. at 275, 113 S.Ct. 2606. The plaintiff in Buckley had also asserted a claim based upon alleged false statements made to the press. The Court likewise refused to grant absolute immunity. “Comments to the media have no functional tie to the judicial" }, { "docid": "20597151", "title": "", "text": "is enough for us to determine that they have pled a clearly established constitutional violation. V Officer Carson claims absolute immunity for all of his alleged conduct under Rehberg v. Paulk, where the Supreme Court found that all grand jury witnesses have: absolute immunity from any § 1983 claim based on the witness’ testimony. In addition ... this rule may not be circumvented by claiming that a grand jury witness conspired to present false testimony or by using evidence of the witness’ testimony to support any other § 1983 claim concerning the initiation or maintenance of a prosecution ... In the vast majority of cases involving a claim against a grand jury witness, the witness and the prosecutor conducting the investigation engage in preparatory activity, such as a preliminary discussion in which the witness relates the substance of his intended testimony. We decline to endorse a rule of absolute immunity that is so easily frustrated. The Court recognized that absolute immunity does not “extend[ ] to all activity that a witness conducts outside of the grand jury room. For example, we have accorded only qualified immunity to law enforcement officials who falsify affidavits and fabricate evidence concerning an unsolved crime.” Under Rehberg, Officer Carson is immune for grand jury testimony, preparation for that testimony, and any conspiracy to falsely testify. He argues that all of his alleged conduct falls into those categories, but the First Amended Complaint goes further. The Coles allege that Officer Carson made false statements in the course of the initial investigation into the shooting, before a decision had been made by prosecutors to charge Ryan with aggravated assault. The FAC indicates that Carson intended these statements to influ ence the decision to bring charges against Ryan in the first place. An officer who lies to investigating officers in order to try. to get someone charged with a crime — before the decision to charge has been made — is not entitled to absolute testimonial immunity. The Supreme Court has held that a prosecutor is not entitled to absolute immunity when she falsifies an affidavit supporting an" } ]

[ { "docid": "22564621", "title": "", "text": "side; and (3) the subsequent prosecution is directly related to offenses in which the defendant, pursuant to the agreement, either assisted with the investigation or testified for the government. Analogous precedent in the area of plea bargaining supports our conclusion. A defendant who pleads guilty as a result of a plea bargaining agreement has a due process right to enforcement of the bargain. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971); United States v. Block, 660 F.2d 1086, 1089-90 (5th Cir. 1981). In Santobello, the defendant plead guilty after a state prosecutor promised not to make a sentencing recommendation. At sentencing, however, another prosecutor recommended the maximum sentence. 404 U.S. at 258-59, 92 S.Ct. at 496. The Supreme Court reversed the conviction and remanded to the state courts, emphasizing that the state was bound by the prosecutor’s promise, regardless of whether the prosecutor’s breach was inadvertent or played no part in the trial judge’s sentencing decision. Id. at 262-63, 92 S.Ct. at 498. The Court’s remarks concerning the role of plea bargaining in the criminal justice system are particularly pertinent to our decision: This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. Id. at 262, 92 S.Ct. at 498. This contractual analysis applies equally well to promises of immunity from prosecution. When such a promise induces a defendant to waive his fifth amendment rights by testifying at the trial of his confederates or to otherwise cooperate with the government to his detriment, due process requires that the prosecutor’s promise be fulfilled. We hold that once the defendant’s good faith compliance with the terms of the agreement is established, the state must" } ]

[ { "docid": "23049387", "title": "", "text": "useful analytical framework, but surely they cannot be blindly incorporated into the criminal law in the area of plea bargaining. A direct application of contract law to the mutual promises in this case arguably dictates dismissal of those counts in the superseding indictment that correspond to the counts in the first indictment that the government promised to drop in return for pleas of guilty. We reject that result in favor of one more consistent with the just and efficient administration of criminal justice. The danger in a pure contractual approach to plea bargaining is that it may seduce one into thinking that the plea bargain involves only two parties, the prosecutor and the defendant, when in fact the trial court plays a critical role in the process. Plea bargaining is governed by Rule 11 of the Federal Rules of Criminal Procedure. Fed.R.Crim.P. rule 11, 18 U.S.C.A. Under Rule 11, the trial court clearly retains discretion in accepting or rejecting plea bargains. United States v. Bean, 564 F.2d 700, 702 (5th Cir. 1977); see also United States v. Ellis, 547 F.2d 863 (5th Cir. 1977). That a plea bargain will result in too light a sentence under the circumstances is a sound reason for a refusal to accept it. United States v. Bean, supra, at 704. Only in unusual circumstances will the rejection of a plea bargain be an abuse of discretion. Id. Thus, the realization of whatever expectations the prosecutor and defendant have as a result of their bargain depends entirely on the approval of the trial court. Surely neither party contemplates any benefit from the agreement unless and until the trial judge approves the bargain and accepts the guilty plea. Neither party is justified in relying substantially on the bargain until the trial court approves it. We are therefore reluctant to bind them to the agreement until that time. As a general rule, then, we think that either party should be entitled to modify its position and even withdraw its consent to the bargain until the plea is tendered and the bargain as it then exists is accepted by" }, { "docid": "2264910", "title": "", "text": "the agreement. The defendant cannot escape the plea without showing “a fair and just reason” unless (and until) the plea agreement is rejected by the court. Fed.R.Crim.P. 11(d). Some courts have suggested that a plea agreement may become enforceable even before the defendant enters a guilty plea if the defendant otherwise detrimentally relies on the agreement. See United States v. Wells, 211 F.3d 988, 994 n. 3 (6th Cir.2000); United States v. Savage, 978 F.2d 1136, 1138 (9th Cir.1992). We need not go so far in this case. It is enough to say that in general a defendant, by entering an accepted guilty plea, sufficiently relies to his detriment on a plea agreement that the government is bound by its promises in the agreement, at least until the agreement is set aside. Perhaps public-interest concerns could make an agreement unenforceable against the government in special circumstances. For example, it may be discovered before sentencing that the charge to which the defendant pleaded does not state a criminal offense, so the agreed dismissal of all other charges would totally free the defendant of criminal responsibility. Cf. United States v. McGovern, 822 F.2d 739, 742, 747 (8th Cir.1987) (such circumstance arose but acceptance of plea had been conditional — subject to review of PSR). We see no public interest, however, in allowing the government to breach its promises regarding sentencing recommendations simply because the court has not yet accepted the plea agreement. After all, the court may decide to reject the plea agreement because it is persuaded to do so by government statements that were contrary to its promises in the plea agreement. Indeed, the Eighth Circuit, while stating that a “defendant is not justified in relying substantially on the terms of the plea agreement until the trial judge approves it and accepts the guilty plea,” id. at 746, nevertheless said that “the government must, unless and until the court rejects the plea, honor in good faith its obligations under the agreement,” id. at 744. The government has not presented to us, nor have we found, any modern case that has held" }, { "docid": "15576674", "title": "", "text": "for prosecutorial misconduct. The defendant was not prejudiced. Defendant also argues for dismissal of the indictment based upon the government’s alleged breach of promise not to prosecute. In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the Supreme Court held that when the government makes promises to a defendant who relies on those promises and pleads guilty, the government must carry out its representations. Because defendant did not plead guilty, the facts here are not governed by Santobello. However, a cooperation agreement is analogous to a plea bargain agreement. United States v. Carrillo, 709 F.2d 35, 36 (9th Cir.1983). Consequently, several courts have acknowledged that the principles of Santobello apply whenever a defendant acts to his detriment in reliance upon governmental promises. See, e.g., Carrillo, 709 F.2d 35 (upholding dismissal of the indictment when DEA agents breached promise not to prosecute if defendant cooperated with government’s investigation of suspected drug traffickers); United States v. Rodman, 519 F.2d 1058 (1st Cir.1975) (requiring dismissal of an indictment when SEC breached agreement to make no prosecution recommendation to United States Attorney in return for defendant’s cooperation). The relevant case law also makes clear, however, that while “[a]s a general rule, fundamental fairness requires that promises made during plea-bargaining and analogous contexts be respected,” Johnson v. Lumpkin, 769 F.2d 630, 633 (9th Cir.1985), this rule is subject to two conditions: (1) the agent must be authorized to make the promise; and (2) the defendant must rely to his detriment on the promise. Id. See also United States v. Kettering, 861 F.2d 675 (11th Cir.1988). Even assuming, arguendo, that the exchange between defendant and FBI agent Sieger constituted a promise not to prosecute defendant if he cooperated, defendant has failed to satisfy either requirement of this test. First, the record is devoid of any evidence establishing that FBI agent Sieger was authorized to make promises or representations to induce defendant’s cooperation. Moreover, during the course of the interview, the agent stated that defendant “was gonna be prosecuted one way or another” and that the final decision on the manner" }, { "docid": "8585975", "title": "", "text": "plea. Stated otherwise, a plea bargain is “a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest”, 467 U.S. at 507, 104 S.Ct. at 2546, 81 L.Ed.2d at 442, so that it may be withdrawn. In deciding Mabry, the Supreme Court overruled our decision in Cooper v. United States, 594 F.2d 12 (4 Cir.1979), which we cited in the prior appeal in ruling that the immunity agreement gave rights to Plaster as soon as it was made. 720 F.2d at 351-54. The government argues that an immunity agreement is to be likened to a plea agreement and therefore it may be withdrawn with impunity until the time that the person immunized has acted thereunder to his prejudice by incriminating himself or by giving the testimony against another as promised. The government argues that Plaster did not act under the immunity agreement so that it has remained exec-utory and may be avoided at the government’s option. The district court rejected the government’s argument, ruling that a plea agreement and an immunity differ markedly so that the holding in Mabry is inapposite. We agree. As the district court correctly analyzed: [A] grant of immunity is different from a plea bargain in that it can never be formalized by a plea of guilty. On the contrary, the very nature of the agreement is the promise on the part of the government to do nothing. In addition, a grant of immunity differs from a plea agreement in that it in no way involves court approval. In the case of a plea agreement, the court in essence executes the agreement by accepting the plea of guilty. In the case of a grant of immunity, however, only two parties are involved. The government alone makes a decision not to prosecute in exchange for testimony which will, hopefully, lead to a greater number of indictments or convictions. The most that one granted immunity can do is to agree to testify and then await the call of the government. The fact that" }, { "docid": "23049386", "title": "", "text": "that a defendant is constitutionally entitled to relief when the state breaches a promise made to him in return for a plea of guilty, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). The Court refrained from deciding exactly what remedy was constitutionally required, but did state “that when a [guilty] plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Id. at 262, 92 S.Ct. at 499. See also United States v. Shanahan, 574 F.2d 1228, 1230 (5th Cir. 1978); United States v. Grandinetti, 564 F.2d 723, 725-26 (5th Cir. 1977). We have previously suggested that a plea bargain is contractual in nature and that when the prosecutor breaches it the underlying basis for the plea fails. Jones v. Estelle, 584 F.2d 687, 689 (5th Cir. 1978); Petition of Geisser, 554 F.2d 698, 704 (5th Cir. 1977). We recognize that principles of contract law provide a useful analytical framework, but surely they cannot be blindly incorporated into the criminal law in the area of plea bargaining. A direct application of contract law to the mutual promises in this case arguably dictates dismissal of those counts in the superseding indictment that correspond to the counts in the first indictment that the government promised to drop in return for pleas of guilty. We reject that result in favor of one more consistent with the just and efficient administration of criminal justice. The danger in a pure contractual approach to plea bargaining is that it may seduce one into thinking that the plea bargain involves only two parties, the prosecutor and the defendant, when in fact the trial court plays a critical role in the process. Plea bargaining is governed by Rule 11 of the Federal Rules of Criminal Procedure. Fed.R.Crim.P. rule 11, 18 U.S.C.A. Under Rule 11, the trial court clearly retains discretion in accepting or rejecting plea bargains. United States v. Bean, 564 F.2d 700, 702 (5th Cir. 1977); see also United" }, { "docid": "23052253", "title": "", "text": "is an inappropriate analogy that we have rejected. See United States ex rel Selikoff v. Commissioner of Correction, 524 F.2d 650, 654 (2d Cir.1975). The law of commercial contracts plays only a limited role in resolving a plea dispute. New York law reflects this limited role by requiring the preparation of a presentence report before any plea agreement may be finalized. See N.Y.C.P.L. § 390.20(1) (McKinney’s 1983); see also Selikoff, 524 F.2d at 654. Plea agreements are more properly viewed as agreements between the state and the defendant; when the parties arrive at an agreement constitutionally and in conformity with state sentencing procedures, each party may insist on adherence to the bargain struck. 2. Proper Analytical Framework for Plea Resolution Courts do not lightly indulge in a presumption of a waiver of constitutional rights. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Because they implicate the waiver of fundamental rights guaranteed to persons charged with crimes, plea agreements must therefore be evaluated with reference to the requirements of due process. A defendant may not, consonant with these guarantees, be held to his negotiated plea of guilty when the promises upon which it was based remain unperformed by the prosecution. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). In Santobello the defendant entered a guilty plea to a lesser included offense upon the prosecutor’s promise to make no recommendation as to sentence. After several months of delay, the successor to the original prosecutor recommended, and the judge imposed, the maximum sentence. Noting that the prosecutor had breached the plea agreement, the Supreme Court held that “the adjudicative element inherent in accepting a plea of guilty must be attended by safeguards to insure the defendant what is reasonably due in the circumstances.” Id. at 262, 92 S.Ct. at 499. These safeguards include requiring the prosecution either to keep its promises or permitting the defendant to withdraw his plea. See Id. at 262-63, 92 S.Ct. at 498-99. The rule also applies to the rarer situation in which the" }, { "docid": "11502991", "title": "", "text": "they are clearly erroneous. See United States v. Daniels, 902 F.2d 1238, 1243 (7th Cir.1990); United States v. Fields, 766 F.2d 1161, 1168 (7th Cir.1985). The district court’s findings are clearly erroneous only where “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). 1. Government Promise Williams argues that the prosecutor in this case promised him a maximum sentence of ten years in exchange for the cooperation he contracted to provide as part of the Agreement. Williams asserts that he lived up to his end of the bargain by providing helpful information to the government and pleading guilty to the four counts of the indictment, but that the government breached its promise because Williams’ sentence was greater than ten years. Plea bargaining is “an essential component of the administration of justice” that is to be encouraged. Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). In order to ensure the continued use of the plea bargaining process, all parties must have confidence that the agreements are fairly reached and will be enforced against all signatories. Id. at 260-61, 92 S.Ct. 495. Therefore, “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promise must be fulfilled.” Id. at 262, 92 S.Ct. 495. However, we read the terms of the government’s promise according to their natural meaning and will not require the government to do more than it intended. See Brooks, 708 F.2d at 1282 (holding that a government promise to refrain from making a sentencing recommendation does not preclude the government from opposing defendant’s efforts to reduce his sentence after the sentence has been handed down). But see United States v. Bowler, 585 F.2d 851, 855 (7th Cir.1978) (holding that the government breached a plea agreement where it agreed to consider specific" }, { "docid": "14317430", "title": "", "text": "with federal agents to Effingham, Illinois to assist the government in Andrus’ arrest. The government was unable to arrest Andrus that day. At the sentencing hearing, the government recommended that the court sentence Collett to twenty years. Collett argues that Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971) requires specific enforcement of the government’s promise. Santobello held that when the government makes promises to a defendant who relies on those promises and pleads guilty, the government must carry out its representations. Id. at 262, 92 S.Ct. at 498. In this case, Collett did not plead guilty, so the facts here are not governed by Santobello. However, many courts have acknowledged that the principles of Santobello apply whenever a defendant acts to his detriment in reliance upon governmental promises. See, e.g., Rowe v. Griffin, 676 F.2d 524 (11th Cir.1982) (holding prosecutor must fulfill promise of immunity in return for defendant’s self incriminating testimony at another trial); United States v. Rodman, 519 F.2d 1058 (1st Cir.1975) (requiring dismissal of indictment when SEC breached agreement to make no prosecution recommendation to United States Attorney in return for defendant’s cooperation); United States v. Wolf, 601 F.Supp. 435 (N.D.Ill.1984) (requiring suppression of statements made to Canadian Revenue agents in return for promise that evidence would not be turned over to United States Internal Revenue agents); and United States v. Sanderson, 498 F.Supp. 273 (M.D.Fla.1980) (requiring dismissal when government agreed not to seek indictment in return for cooperation in counterfeiting investigation). In the instant case, however, the government did not seek to use the contents of statements made by Collett in return for the government’s promise to recommend a ten year sentence. The trial court held a pretrial hearing on the admissibility of Collett’s statements. Agents Willis and Waldrup of the Illinois Department of Law Enforcement and Agent Kildow of the Drug Enforcement Administration, all of whom had been present when Collett was arrested at the airport and questioned at the police station, testified about Collett’s statements. After hearing their uncontradicted testimony, the court held that Collett had" }, { "docid": "2264909", "title": "", "text": "it may, and generally does, await the presen- tenee report before deciding. See id. Rule 11(c)(3)(A); USSG § 6B1.1 cmt. After the plea is accepted the defendant can withdraw it before sentencing only upon showing “a fair and just reason,” Fed.R.Crim.P. 11(d)(2)(B), unless the court rejects the plea agreement, see id. Rule 11(d)(2)(A). See also Hyde, 520 U.S. 670, 117 S.Ct. 1630, 137 L.Ed.2d 935. Under general contract principles a plea agreement would be enforceable against the government once the defendant’s plea of guilty is accepted in accordance with Rule 11. A totally executory plea agreement, whose promises have not been performed in any way by either party, may not be enforceable. See Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984) (holding that state prisoner did not have constitutional right to enforce executory plea agreement). But “the ensuing guilty plea ... implicates the Constitution,” id. at 507-08,104 S.Ct. 2543, and also solidifies the government’s obligations under contract law. Once the defendant’s plea is accepted, the defendant has detrimentally relied on the agreement. The defendant cannot escape the plea without showing “a fair and just reason” unless (and until) the plea agreement is rejected by the court. Fed.R.Crim.P. 11(d). Some courts have suggested that a plea agreement may become enforceable even before the defendant enters a guilty plea if the defendant otherwise detrimentally relies on the agreement. See United States v. Wells, 211 F.3d 988, 994 n. 3 (6th Cir.2000); United States v. Savage, 978 F.2d 1136, 1138 (9th Cir.1992). We need not go so far in this case. It is enough to say that in general a defendant, by entering an accepted guilty plea, sufficiently relies to his detriment on a plea agreement that the government is bound by its promises in the agreement, at least until the agreement is set aside. Perhaps public-interest concerns could make an agreement unenforceable against the government in special circumstances. For example, it may be discovered before sentencing that the charge to which the defendant pleaded does not state a criminal offense, so the agreed dismissal of all other" }, { "docid": "2264911", "title": "", "text": "charges would totally free the defendant of criminal responsibility. Cf. United States v. McGovern, 822 F.2d 739, 742, 747 (8th Cir.1987) (such circumstance arose but acceptance of plea had been conditional — subject to review of PSR). We see no public interest, however, in allowing the government to breach its promises regarding sentencing recommendations simply because the court has not yet accepted the plea agreement. After all, the court may decide to reject the plea agreement because it is persuaded to do so by government statements that were contrary to its promises in the plea agreement. Indeed, the Eighth Circuit, while stating that a “defendant is not justified in relying substantially on the terms of the plea agreement until the trial judge approves it and accepts the guilty plea,” id. at 746, nevertheless said that “the government must, unless and until the court rejects the plea, honor in good faith its obligations under the agreement,” id. at 744. The government has not presented to us, nor have we found, any modern case that has held that the government is not bound by a plea agreement after the court has accepted a guilty plea predicated on the agreement. Accordingly, we hold that, absent extraordinary circumstances, once a defendant’s guilty plea has been accepted by the court, the government is bound by its plea-agreement promises regarding sentencing recommendations even if the plea agreement has not yet been accepted by the court, and even if it is ultimately rejected by the court (although, of course, after rejection the government is no longer bound with respect to making later recommendations). Moreover, we observe that when the district court said that it was rejecting the plea agreement, its “rejection” was not in accordance with Rule 11. Rule 11(c)(3)(A) authorizes the court to reject a plea agreement only to the extent that it is of a type described in subparagraph (A) or (C) of Rule 11(c)(1), both of which address promises that bind the court. Subparagraph A concerns government promises not to bring charges; subparagraph C concerns agreements that the plea is conditional on, for example," }, { "docid": "19922853", "title": "", "text": "and advised Novosel in accordance with Rule ll(b)(l)-(3), including informing him of his appeal rights and the terms of the appeal waiver provision. It is clear under Rule 11 that, until the moment the court accepted his guilty plea, Novosel was free to withdraw his guilty plea “for any reason or no reason.” Rule 11(d)(1). By the same token, because the court had not yet accepted his guilty plea, Novosel retained the choice to either accept the appeal-waiver modification or reject the modification and proceed to trial when the government proposed adding the appeal-waiver provision to the plea agreement. See id. Rule 11 does not address whether there are circumstances under which a signed plea agreement may be binding on the government prior to the defendant’s entry of a guilty plea. The Supreme Court has held that when a prosecutor withdraws a plea agreement before the defendant enters his plea, the defendant cannot specifically enforce it. Mabry, 467 U.S. at 511, 104 S.Ct. 2543. This court has held, under Mabry, that a prosecutor was entitled to withdraw an oral plea offer before the defendant accepted it and before it was accepted by the court. United States v. Randel, 8 F.3d 1526, 1528 (10th Cir.1993). The Ninth Circuit has held that the government is not bound to the written plea agreement it entered into with defendant until the district court accepts the plea agreement, but it recognized the possibility that “where detrimental reliance is shown, the government may be bound even before the district court accepts the agreement.” United States v. Kuchinski, 469 F.3d 853, 857-58 (9th Cir.2006); see also Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (“[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promise must be fulfilled.”). Novosel argues the modification altered the bargain at the heart of his plea agreement and that he is entitled to receive the benefit of his original bargain. He does not," }, { "docid": "1501448", "title": "", "text": "that during the brief period of time when she knew where he was, she was not asked by the government if she had such information. At all other times when questioned as to Kirschwing’s location, and specifically on the June 18th occasion, the defendant insists that she truthfully responded that she did not know. This is not a ease involving a formal grant of statutory immunity under 18 U.S.C. §§ 6001, et seq. (1976). Therefore, the Court’s inquiry into the validity and enforceability of the agreement at issue is based upon eases which have dealt with informal offers or promises of immunity or leniency. One of the earliest of such cases casts some doubt on whether a promise not to prosecute on certain charges in return for cooperation in obtaining evidence against others is a permissible defense. See Whiskey Cases, 99 U.S. 594, 598-606, 25 L.Ed. 399 (1878). More recent cases, however, have uniformly held that such promises are legally enforceable. United States v. Stevens, 601 F.2d 1075 (9th Cir.), cert. denied, 444 U.S. 917, 100 S.Ct. 232, 62 L.Ed.2d 172 (1979); United States v. Rodman, 519 F.2d 1058 (1st Cir. 1975); United States v. De Sena, 490 F.2d 692 (2d Cir. 1973); United States v. Carter, 454 F.2d 426 (4th Cir. 1972), cert. denied, 417 U.S. 933, 94 S.Ct. 2646, 41 L.Ed.2d 237 (1974); United States v. Minnesota Mining & Mfg. Co., 428 F.Supp. 707 (D.Minn.1976), aff’d, 551 F.2d 1106 (8th Cir. 1977); In re Kelly, 350 F.Supp. 1198 (E.D.Ark.1972); United States v. Robbins, 337 F.Supp. 1050 (N.D.Ohio 1972); United States v. Paiva, 294 F.Supp. 742 (D.D.C.1969). Although the Fifth Circuit Court of Appeals has not directly considered the validity of informal promises of immunity, two of its recent cases suggest that where the government has given such a promise, the terms of the promise should be binding upon the government. United States v. Weiss, 599 F.2d 730 (5th Cir. 1979); United States v. Calimano, 576 F.2d 637 (5th Cir. 1978). Additionally, the Court notes that in an analogous situation involving a government promise relating to a plea agreement," }, { "docid": "7022557", "title": "", "text": "reflect the extent of Salerno’s cooperation in the investigation and prosecution of others. The vacation of Salerno’s guilty plea, and the automatic reinstatement of the dismissed counts also served to nullify the plea agreement. In light of Salerno’s flagrant breach of the promises he had made to induce the Government to recommend a plea to only 5 of 17 counts, the Government was understandably unwilling to bargain with him again. Salerno’s reliance on United States v. Garcia, 519 F.2d 1343 (9th Cir.1975), is misplaced. In Garcia, the Government failed to abide by the express terms of a deferred prosecution agreement. The Government had agreed to delay indicting the defendant for a period of time to allow him to attempt to produce a drug dealer. Id. at 1344. If the defendant failed to produce, the Government had a fixed period of time to seek an indictment. Id. No dealer was produced and, after the time had elapsed, the Government belatedly sought and obtained an indictment. Id. The defendant unsuccessfully moved the district court for ■ an order dismissing the indictment. Id. at 1344. Because thé defendant had relied to his detriment on an agreement violated by the Government, we reversed the district court with instruction to dismiss the indictment. Id. at 1345. Salerno relies on Garcia for the proposition that the fact that a defendant has breached a plea agreement does not relieve the Government from its duty to perform its promises. Garcia is inapposite because it involved a breach of an agreement by the Government. In this case, notwithstanding Salerno’s material breach of the agreement, the Government did not seek to repudiate the agreement on December 12, 1991, prior to the imposition of sentence on the five counts to which Salerno pled guilty. Furthermore, the Government agreed to the dismissal of the remaining counts in the indictment. Unlike the situation in Garcia, the Government fulfilled its obligations under the plea until it was nullified by this court’s order vacating the guilty pleas. Each of the other cases cited by Salerno’s counsel to support the proposition that the Government must fulfill'" }, { "docid": "8389430", "title": "", "text": "other forms of contracts, a negotiated guilty plea is a “bargained-for quid pro quo.” United States v. Partida-Parra, 859 F.2d 629, 633 (9th Cir.1988). Thus, either party can be said to “breach” a plea bargain if it fails to live up to the promises it made under the terms of the agreement. Where a defendant has breached a plea agreement, courts have found the government to be free from its obligations. See, e.g., id. (citing United States v. Verrusio, 803 F.2d 885, 887-89 (7th Cir.1986); United States v. Reardon, 787 F.2d 512, 516 (10th Cir.1986)). Where the government is in breach, there are several available remedies, including allowing the defendant to withdraw his guilty plea or ordering “specific performance” by the government. See id. at 633. (citing United States v. Herrera, 640 F.2d 958, 960 (9th Cir.1981)); see generally Fed.R.Crim.P. 32(e) (governing plea withdrawals). In accordance with standard contract-law principles, if the government is correct that the defendants breached or repudiated their plea agreements in this case, it is no longer bound by its promise to dismiss the drug trafficking charges and is free to reinstate the dismissed counts insofar as they are not barred by double jeopardy. If no breach or repudiation occurred, the government’s argument fails and the defendants are entitled to hold it to its promise with respect to the dismissed drug counts. Although there was no written plea agreement in this case, the Assistant United States Attorney explained to the district court the substance of the plea bargains: The offers were that the defendants, Jose Maria Sandoval Lopez would enter a guilty plea to Counts 8 and 9 of the Indictment; [and] Joaquin Sandoval Lopez would enter a guilty plea to Counts 11 and 12 of the Indictment ... with the stipulations by Jose and Joaquin Sandoval Lopez with the requisite predicate offenses exist, narcotics offenses existed under the current Ninth Circuit law for this Court to impose two consecutive five-year sentences; and, further, that there will be no opposition on the seizures, forfeitures of cars, currency, weapons or cellular telephones in this case that might" }, { "docid": "7022556", "title": "", "text": "agreement when it failed to move to vacate it prior to the imposition of sentence on December 12, 1991. This argument has no relevance to the validity of the sentence imposed by the court on January 6, 1995. Whether the' Government had the right to repudiate the plea agreement prior to the imposition of sentence on December 12,1991, became moot when we vacated Salerno’s plea of guilty. The plea agreement also provided that: If defendant’s guilty plea is rejected, withdrawn, vacated or reversed, at any time, the United States will be free to prosecute the defendant for all charges of which it has knowledge, and any charges that have been dismissed because of this plea agreement will be automatically reinstated. (emphasis added). Thus, when. Salerno’s plea was vacated, the plea agreement was nullified ex proprio vigore. The Government and Salerno were restored to the position they were in before Salerno agreed to enter a plea of guilty to five counts in exchange for a promise by the Government to recommend a reduced sentence that would reflect the extent of Salerno’s cooperation in the investigation and prosecution of others. The vacation of Salerno’s guilty plea, and the automatic reinstatement of the dismissed counts also served to nullify the plea agreement. In light of Salerno’s flagrant breach of the promises he had made to induce the Government to recommend a plea to only 5 of 17 counts, the Government was understandably unwilling to bargain with him again. Salerno’s reliance on United States v. Garcia, 519 F.2d 1343 (9th Cir.1975), is misplaced. In Garcia, the Government failed to abide by the express terms of a deferred prosecution agreement. The Government had agreed to delay indicting the defendant for a period of time to allow him to attempt to produce a drug dealer. Id. at 1344. If the defendant failed to produce, the Government had a fixed period of time to seek an indictment. Id. No dealer was produced and, after the time had elapsed, the Government belatedly sought and obtained an indictment. Id. The defendant unsuccessfully moved the district court for ■ an" }, { "docid": "1278576", "title": "", "text": "has shown no other prejudice. She had all rights intact to a fair trial before a jury and voluntarily waived them. Specific performance of any agreement was not mandated here. Mem.Op. at 5 (May 4, 1988) (footnote omitted) (citing Mabry, supra; Coon, supra; and United States v. McGovern, 822 F.2d 739 (8th Cir.1987). The issue on appeal is whether dismissing an indictment is the appropriate remedy when the government breaches an agreement not to prosecute. We disagree with the magistrate’s holding that the suppression of evidence is the only remedy for an unfulfilled agreement not to prosecute. We also believe the district court erred in not holding an evidentiary hearing before determining that specific performance of an agreement not to prosecute was not warranted in this case. II. DISCUSSION Cooperation-immunity agreements are contractual in nature and subject to contract law standards. United States v. Brown, 801 F.2d 352, 354 (8th Cir.1986). A cooperation agreement is somewhat analogous to a plea agreement except that the former is a “prosecutorial agreement, the unviolability of which rested completely in the province of the government prosecutors, who have the sole power and responsibility to institute criminal proceedings.” United States v. Minnesota Mining and Manufacturing Company, 551 F.2d 1106, 1112 (8th Cir.1977). With an agreement not to prosecute, parties agree that the defendant’s cooperation is sufficient consideration for the government’s promise of immunity. United States v. McGovern, 822 F.2d 739, 745 (8th Cir.1987). Although the remedy for the breach of such a promise rests in the discretion of the trial court, see Santobello v. New York, 404 U.S. 257, 263, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971), under the law in this Circuit, a dismissal of an indictment is appropriate under certain circumstances. Minnesota Mining, 551 F.2d at 1112; Brown, 801 F.2d at 355. Specific performance of an agreement not to prosecute is appropriate unless 1) the government made no firm promise of immunity, United States v. Calimano, 576 F.2d 637, 640 (5th Cir.1978); United States v. Weiss, 599 F.2d 730, 735 (5th Cir.1979); 2) the defendant failed to fulfill her part of the" }, { "docid": "1501449", "title": "", "text": "100 S.Ct. 232, 62 L.Ed.2d 172 (1979); United States v. Rodman, 519 F.2d 1058 (1st Cir. 1975); United States v. De Sena, 490 F.2d 692 (2d Cir. 1973); United States v. Carter, 454 F.2d 426 (4th Cir. 1972), cert. denied, 417 U.S. 933, 94 S.Ct. 2646, 41 L.Ed.2d 237 (1974); United States v. Minnesota Mining & Mfg. Co., 428 F.Supp. 707 (D.Minn.1976), aff’d, 551 F.2d 1106 (8th Cir. 1977); In re Kelly, 350 F.Supp. 1198 (E.D.Ark.1972); United States v. Robbins, 337 F.Supp. 1050 (N.D.Ohio 1972); United States v. Paiva, 294 F.Supp. 742 (D.D.C.1969). Although the Fifth Circuit Court of Appeals has not directly considered the validity of informal promises of immunity, two of its recent cases suggest that where the government has given such a promise, the terms of the promise should be binding upon the government. United States v. Weiss, 599 F.2d 730 (5th Cir. 1979); United States v. Calimano, 576 F.2d 637 (5th Cir. 1978). Additionally, the Court notes that in an analogous situation involving a government promise relating to a plea agreement, the Court of Appeals required that the government abide by its agreement. Geisser v. United States, 513 F.2d 862 (5th Cir. 1975). See also Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (enforcing oral promise of prosecutor not to make recommendation at sentencing). The Court, therefore, concludes that the agreement is binding and may be raised by the defendant as a defense to the instant prosecution. The Court must now decide whether the defendant sufficiently complied with the terms set forth in the agreement. The agreement required that: (1) the defendant relate the events that occurred on a trip to Georgia with Kirsehwing, (2) the defendant describe any conversations she may have had with Kirsehwing or others concerning counterfeit bills, and (3) the defendant relate any knowledge she may have as to Kirschwing’s whereabouts. The government argues that Sanderson should not be afforded immunity in the instant case because she failed to live up to her part of the agreement in that she did not volunteer information regarding Kirschwing’s" }, { "docid": "4438552", "title": "", "text": "981 (2d Cir.) (per curiam) (court of appeals will not use doctrine of actual authority in context of promises made by government officials), cert. denied, 449 U.S. 856, 101 S.Ct. 152, 66 L.Ed.2d 70 (1981); United States v. Bowler, 585 F.2d at 854 (“A plea agreement is not an appropriate context for the Government to resort to a rigidly literal approach in the construction of language.”). See generally Broken Plea Bargains, 66 Calif.L.Rev. at 527-28 (proposing theory of “constitutional contracts”). The analogy between contracts and plea agreements works well in the usual plea bargain case, which involves the entry of a guilty plea, or the performance of some other action, following plea negotiations and an agreement about specific terms. E.g., United States v. Runck, 601 F.2d 968, 970 (8th Cir.1979) (on petition for rehearing) (following entry of negotiated plea, dispute arose over whether part of sentence was within plea agreement accepted by district court). Traditional contract principles, however, are of little guidance in a plea proposal case like the present one. Here, as in Cooper and Scotland, we are confronted with a fact situation that falls short of a plea bargain. Petitioner did not enter a plea of guilty in court and has not performed any specific action in reliance upon the plea bargain. Compare Palermo v. Warden, 545 F.2d at 290 (defendants offered reduced sentences and early parole in exchange for return of stolen jewelry); see United States v. Bowler, 585 F.2d at 852 (plea agreement provided for dismissal of counts and recommended sentence if defendant cooperated in further prosecutions and other investigations). However, petitioner did rely on the plea proposal to the extent that he considered the terms offered, agreed to accept the plea proposal and communicated his willingness to plead guilty to the prosecuting attorney. In Cooper the Fourth Circuit found “the constitutional right to ‘fairness’ [set forth in San tobello] to be wider in scope than that defined by the law of contract” and recognized “a constitutional right to enforcement of plea proposals [which] may arise before any technical ‘contract’ has been formed, and on the" }, { "docid": "773287", "title": "", "text": "September 1978. Neither party anticipated that the court would fail to sentence petitioner on that date, and the agreement imposed no obligations on either party after petitioner pleaded guilty. 5. There is some dispute whether Stroud promised petitioner that he would receive a particular sentence. Even if Stroud did make such a promise, he had no authority to bind the court, and such alleged promise will be given no effect by this court. Furthermore, where the prosecution promises to recommend a sentence and does so, but the court rejects it, defendant’s constitutional rights are not violated. United States v. Futeral, 539 F.2d 329 (4th Cir.1975). C. Jeopardy attached when Burgess pleaded guilty and the court accepted the plea in January 1979. 6. “A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.” Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969). Jeopardy therefore attached when petitioner’s guilty plea was accepted by the court in January 1979. The attachment of jeopardy when the court accepted the plea has a legal effect on this case independent of the plea agreement, and any later status of the agreement cannot purge this legal effect. Thus, any alleged breach of the plea agreement by either side had no effect on petitioner’s conviction of the crimes covered by the indictment. D. The State violated petitioner’s Fifth Amendment right against being twice put in jeopardy for the same offense when the State brought further indictments and prosecuted Burgess for acts occurring prior to September 20, 1978. 7. The double jeopardy provision of the Fifth Amendment, enforceable against the states by the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), protects against a second prosecution for the same offense after conviction. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). 8. The State violated petitioner's Fifth Amendment right against being twice put in jeopardy for the same offense when" }, { "docid": "15576673", "title": "", "text": "As [the] Magistrate ... correctly noted in his Report and Recommendation, the court should not dismiss an indictment absent a showing that defendant “was demonstrably prejudiced by the violation.” United States v. Talbot, 825 F.2d 991, 998 (6th Cir.1987). Even assuming the FBI agent told defendant he would not be prosecuted if he cooperated (an assertion which the government strongly contests) dismissal of the indictment is a drastic remedy, which is appropriate only in truly egregious cases. See United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1980 [1981]). Defendant has failed to show any such prejudice in this case. The District Court based its decision that there was no prejudice on the government’s stipulation that none of the statements made by defendant at the interview with the agents would be used at trial, as well as the Assistant United States Attorney’s representation to the District Court that none of these statements were presented to the grand jury. We agree with the District Court that the indictment should not be dismissed for prosecutorial misconduct. The defendant was not prejudiced. Defendant also argues for dismissal of the indictment based upon the government’s alleged breach of promise not to prosecute. In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the Supreme Court held that when the government makes promises to a defendant who relies on those promises and pleads guilty, the government must carry out its representations. Because defendant did not plead guilty, the facts here are not governed by Santobello. However, a cooperation agreement is analogous to a plea bargain agreement. United States v. Carrillo, 709 F.2d 35, 36 (9th Cir.1983). Consequently, several courts have acknowledged that the principles of Santobello apply whenever a defendant acts to his detriment in reliance upon governmental promises. See, e.g., Carrillo, 709 F.2d 35 (upholding dismissal of the indictment when DEA agents breached promise not to prosecute if defendant cooperated with government’s investigation of suspected drug traffickers); United States v. Rodman, 519 F.2d 1058 (1st Cir.1975) (requiring dismissal of an indictment when SEC breached agreement" } ]

[ { "docid": "19733750", "title": "", "text": "months. Because of her prior felony drug conviction, however, she faced a statutory mandatory minimum sentence of 240 months, thus making her advisory Guidelines range 240-262 months. The Government filed substantial assistance downward departure motions under both USSG § 5K1.1 and 18 U.S.C. § 3553(e), and recommended a ten percent departure. The district court granted Ms. Dalton a reduction of 80 months from the mandatory minimum sentence and imposed a sentence of 160 months of imprisonment. It is this sentence that Ms. Dalton now appeals, arguing that the sentence was unreasonable, that undue weight was given to the Guidelines in determining her sentence, and that the sentence should be remanded to give the district court more freedom in determining a reasonable sentence. When sentencing a defendant, the district court must first determine the applicable advisory Guidelines range, as the court did here, relying upon Ms. Dalton’s offense level and criminal history. See United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir.), cert. denied, — U.S. —, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005). The district court can then decide if a traditional departure from that advisory range is warranted, including one based upon substantial assistance motions, by utilizing the Guidelines and the policy statements contained therein, and if so, arrive at a final advisory Guidelines sentence. Id.; 18 U.S.C. § 3553(e). Once this final advisory Guidelines sentence is arrived at by the district court, the court should then evaluate the factors set forth in § 3553(a) and determine if a Guidelines or a non-Guidelines sentence is warranted. Id. If appealed, we would review the ultimate sentence imposed for reasonableness. See Booker, 543 U.S. at 261-62, 125 S.Ct. 738. However, the last step in the district court’s determination of the ultimate sentence is eliminated if •& Guidelines departure granted in step two takes the sentence below a statutory mandatory minimum sentence. United States v. Williams, 474 F.3d 1130, 1130-31 (8th Cir.2007). We find no error in the district court’s determination of Ms. Dalton’s sentence. A Guidelines departure sentence was properly determined, and we believe the district court gave proper weight" } ]

[ { "docid": "22159838", "title": "", "text": "and Vonner would have been furthered even if defense counsel had raised this issue below. Although defense counsel did not raise this particular claim of procedural error below, it is not subject to plain-error review. III. Those claims not forfeited under Vonner are subject to the traditional standard of review that governs sentencing challenges. After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the sentencing Guidelines are “advisory” only, and thus a district court is no longer bound by the sentencing range prescribed thereunder. Id. at 245, 125 S.Ct. 738. Although recognizing that the federal sentencing statute still “requires a sentencing court to consider Guidelines ranges,” Booker determined that sentencing judges are permitted “to tailor the sentence in light of other statutory concerns as well.” Id. at 245, 125 S.Ct. 738 (citing 18 U.S.C. § 3553(a)). In light of this authority, we “review a district court’s sentencing determination, ‘under a deferential abuse-of-discretion standard,’ for reasonableness!]]” United States v. Bolds, 511 F.3d 568, 578 (6th Cir.2007) (quoting Gall, 128 S.Ct. at 591); see also Rita v. United States, 551 U.S. 338, 347-51, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). This standard applies “ ‘[r]egardless of whether the sentence imposed is inside or outside the Guidelines range....’” United States v. Higgins, 557 F.3d 381, 397 (6th Cir.2009) (quoting Gall, 128 S.Ct. at 597). Thus, a district court’s decision to exercise its discretion to depart from the advisory Guidelines, either upward or downward, is reviewed for reasonableness. See United States v. Smith, 474 F.3d 888, 894 (6th Cir.2007) (“Therefore, it is here that we will incorporate our post-Booker jurisprudence to our review of upward departures under § 4A1.3.”). The reasonableness of a district court’s sentence “has both substantive and procedural components.” Jones, 489 F.3d at 250. Consequently, our “reasonableness review requires [inquiry] into both ‘the length of the sentence’ and ‘the factors evaluated and the procedures employed by the district court in reaching its sentencing determination.’” Liou, 491 F.3d at 338 (quoting Webb, 403 F.3d at 383). In conducting this review, we must “ ‘first ensure that" }, { "docid": "23473988", "title": "", "text": "district court remarked during the sentencing hearing that it had granted such departures in the past. Consequently, we decline to review the district court’s decision to not depart downward under U.S.S.G. § 5H1.6. Second, the record in this case indicates that the district court’s refusal to vary Carter’s sentence below the applicable advisory guidelines range did not render Carter’s sentence unreasonable. Although the district court’s denial of the downward departure is not reviewable, Carter’s sentence remains reviewable for reasonableness. See Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2459, 168 L.Ed.2d 203 (2007); United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); see also United States v. McBride, 434 F.3d 470, 476-77 (6th Cir.2006). The question of whether a sentence is reasonable is determined using the abuse-of-discretion standard of review. Gall v. United States, — U.S. ——, 128 S.Ct. 586, 594-95, 169 L.Ed.2d 445 (2007). Review for reasonableness has both procedural and substantive components. See Gall, 128 S.Ct. at 596-97; United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005). The record indicates that the district court committed no significant procedural error with respect to Carter’s sentence. The district court did not “fail[ ] to calculate (or improperly calculate]) the Guidelines range, treat[ ] the Guidelines as mandatory, fail[ ] to consider the § 3558(a) factors, select[ ] a sentence based on clearly erroneous facts, or fail[ ] to adequately explain the chosen sentence.” Gall, 128 S.Ct. at 596-97; see also United States v. Ferguson, 456 F.3d 660, 664 (6th Cir.2006). During the sentencing hearing, the district court heard testimony and argument regarding the Carter family’s medical and financial condition. The record reveals that the district court considered the properly calculated guidelines range before imposing a sentence and did not treat the sentencing guidelines as mandatory. The record also reveals that the district court considered a number of other relevant 18 U.S.C. § 3553(a) factors, including Carter’s criminal history and the characteristics of his offense, see § 3553(a)(1), the Sentencing Commission’s policy statements regarding reductions based on family ties and responsibilities, see" }, { "docid": "8265238", "title": "", "text": "for a downward departure. Filing No. 21. The record shows that the parties agreed that Baird should be held accountable for more than 10 but less than 150 images. Filing No. 26, Plea Hr’g Tr. at 21-22, 24-26. The parties later agreed to the application of a two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for distribution for receipt of something other than that described in subsection (A) through (E). That agreement mooted defendant’s objection to the application of a five-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) for distribution for a thing of value. At the sentencing hearing, Baird orally moved for a departure and for a sentence outside the Guidelines under 18 U.S.C. § 3553(a). II. LAW The Sentencing Guidelines are no longer mandatory. United States v. Booker, 543 U.S. 220, 260-61, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In Booker, the Supreme Court held that the mandatory Sentencing Guidelines system violated the Sixth Amendment. Booker, 543 U.S. at 226-227, 125 S.Ct. 738. In the Booker remedial opinion, the Supreme Court determined that the constitutional violation would be cured by modifying the federal sentencing statute to make the Guidelines effectively advisory. Id. at 245, 125 S.Ct. 738. The range of choice in sentencing dictated by the facts of the case has been significantly broadened. Gall v. United States, 552 U.S. -, -, 128 S.Ct. 586, 602, 169 L.Ed.2d 445 (2007) (finding a sentence outside the Guidelines to be reasonable); Kimbrough v. United States, 552 U.S. -, -, 128 S.Ct. 558, 570, 169 L.Ed.2d 481 (2007) (noting that courts may vary from Guidelines ranges based solely on policy considerations, including disagreements with the Guidelines); Rita v. United States, 551 U.S. -, -, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007) (holding that a district court may consider arguments that “the Guidelines sentence itself fails properly to reflect § 3553(a) considerations”); Cunningham v. California, 549 U.S. 270, -, 127 S.Ct. 856, 867, 166 L.Ed.2d 856 (2007) (stating that judges are no longer tied to the sentencing range indicated in the Guidelines but are obliged to “take account of’ that range along with the sentencing" }, { "docid": "21237977", "title": "", "text": "advisory Guidelines sentencing range. See United States v. Ture, 450 F.3d 352, 356 (8th Cir.2006). Next, the sentencing court -must decide whether a traditional departure from the advisory Guidelines sentencing range is appropriate based either on Parts H or K of Chapter Five of the Guidelines, policy statements, or commentary. See United States v. Dalton, 478 F.3d 879, 881 (8th Cir.2007). The sentencing court has then arrived at a final advisor ry Guidelines sentencing range. Id. Then, the sentencing court must consider the factors set forth at 18 U.S.C. § 3553(a) to determine whether to impose a sentence within or without the final advisory Guidelines sentencing range. See id.; United States v. Rouillard, 474 F.3d 551, 555 (8th Cir.2007). The sentencing court must impose a. sentence tailored to the § 3553(a) factors. See Booker, 543 U.S. at 245-46, 125 S.Ct. 738. On appeal, we address the reasonableness or unreasonableness of the sentence. See Rita v. United States, 551 U.S. —-, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007); Booker, 543 U.S. at 261, 125 S.Ct. 738. A. Physical Condition Departure .The first issue before the court is the propriety of the district court’s downward departure pursuant to Guideline § 5H1.4. We review for abuse of discretion departures from the Guidelines, Rouillard, 474 F.3d at 555, and review for clear error the district court’s factual finding that Coughlin suffers an extraordinary physical impairment, see United States v. Robinson, 409 F.3d 979, 981 (8th Cir.2005). If an appellate court “is left with the definite and firm conviction that a mistake has been committed,” then a factual finding is clearly erroneous even if some evidence supports the factual finding. Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Guideline § 5H1.4 permits a downward departure based on a defendant’s “extraordinary physical impairment.” A departure based on a physical condition is a discouraged ground on which to depart and should be limited to exceptional circumstances. See Koon v. United States, 518 U.S. 81, 95-96, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States v. Johnson, 318" }, { "docid": "22990987", "title": "", "text": "U.S.C. § 1291. II. The Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), rendered the Sentencing Guidelines advisory. Under Booker, we review the sentence imposed by the District Court for reasonableness, Booker, 543 U.S. at 261-62, 125 S.Ct. 738 which, in essence, calls upon us to “ask[ ] whether the trial court abused its discretion. ...” Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007). To determine whether a sentence is reasonable, the court must examine “whether the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United States v. Grier, 475 F.3d 556, 571 (3d Cir.2007) (en banc); see also United States v. Cooper, 437 F.3d 324, 329 (3d Cir.2006) (“The record must demonstrate the trial court gave meaningful consideration to the § 3553(a) factors.”). In United States v. Gunter, 462 F.3d 237 (3d Cir.2006), we set out a three-step process for district courts to follow in imposing sentences after Booker. Those steps are: (1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker. (2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. (3) Finally, they are required to exercise their discretion by considering the relevant § 3553(a) factors, in setting the sentence they impose regardless [of] whether it varies from the sentence calculated under the Guidelines. Id. at 247 (internal citations, quotation marks, and brackets omitted). On appeal, “we must ... ascertain whether [the § 3553(a)] factors were reasonably applied to the circumstances of the case.” Cooper, 437 F.3d at 330. Our review is deferential, id., but a “significant departure” from the Guidelines range “must be adequately supported by the record.” United States v. King, 454 F.3d 187, 195 (3d Cir.2006). Applying those standards here, we conclude" }, { "docid": "22990986", "title": "", "text": "a sentence that was substantially lower than the range set out by the applicable Sentencing Guidelines, the court mentioned that it had considered the Guidelines, but made no mention of the range that was applicable to Goff. The court also considered a letter written to the court by Goffs psychiatrist, which stated that Goff “had never acted out in any sexual way with children” and that Goffs behavior did not “signify] the presence of any sexual déviancy.” The court also noted the number of letters of support from friends, as well as parents and faculty from the school where Goff had worked. It appears that the court relied heavily on the fact that Goff had no criminal history and had lived an “exemplary” life for fifty-four years. Based on all of those factors, the court imposed a four month period of incarceration, followed by a term of supervised release. Pursuant to 18 U.S.C. § 3742(b), the government timely appealed the sentence imposed by the District Court as unrea sonable. We have jurisdiction pursuant to 28 U.S.C. § 1291. II. The Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), rendered the Sentencing Guidelines advisory. Under Booker, we review the sentence imposed by the District Court for reasonableness, Booker, 543 U.S. at 261-62, 125 S.Ct. 738 which, in essence, calls upon us to “ask[ ] whether the trial court abused its discretion. ...” Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007). To determine whether a sentence is reasonable, the court must examine “whether the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United States v. Grier, 475 F.3d 556, 571 (3d Cir.2007) (en banc); see also United States v. Cooper, 437 F.3d 324, 329 (3d Cir.2006) (“The record must demonstrate the trial court gave meaningful consideration to the § 3553(a) factors.”). In United States v. Gunter, 462 F.3d 237 (3d Cir.2006), we set out a three-step process for district courts to follow in imposing sentences" }, { "docid": "22412775", "title": "", "text": "Farias, 481 F.3d 289 (5th Cir.2007). . See Becerra, 155 F.3d at 753. . 101 Fed.Appx. at 439 (emphasis added). . Id. at 438-39. . See Booker, 543 U.S. at 245, 125 S.Ct. 738. . See United States v. Bad Marriage, 439 F.3d 534, 538 (9th Cir.2006) (“If [the earlier opinion in this case] is read to establish the law of the case under a mandatory Sentencing Guidelines regime, Booker, which leaves Guidelines as advisory only, is intervening controlling authority displacing prior law of case.”). . Gall v. United States, - U.S. -, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). . Id. at 597. . Id. . Id. . U.S.S.G. § 3C1.1 (1998). . United States v. Alonzo, 435 F.3d 551, 553 (5th Cir.2006). . 18 U.S.C. § 3742(f)(1). . Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992). . Gall, 128 S.Ct. at 597. . Id. . Id. . Id. . United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). . -U.S.-, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). . U.S.-, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). . Gall, 128 S.Ct. at 596-97. . Id. at 597. . Kimbrough, 128 S.Ct. at 564 (quoting 18 U.S.C. § 3553(a)). . -U.S.-, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). . Kimbrough, 128 S.Ct. at 570 (alteration in original) (citing Rita, 127 S.Ct. at 2465 for the proposition that \"a district court may consider arguments that ‘the Guidelines sentence itself fails properly to reflect § 3553(a) considerations.' ”). . Gall, 128 S.Ct. at 592-93. . Id. at 601-02 n. 11 (\"Specifically, probation is not recommended under the Guidelines when the applicable Guidelines range is outside Zone A of the sentencing table as it is here. USSG § 5B1.1.”). . Id. at 601-02. . Id. at 602. . Id. (\"[T]he Guidelines are only one of the factors to consider when imposing sentence ....”); Kimbrough, 128 S.Ct. at 564 (\"[T]he Guidelines, formerly mandatory, now serve as one factor among several courts must consider in determining an appropriate sentence.”). . Gall, 128" }, { "docid": "23092732", "title": "", "text": "erred in its calculation of the loss attributable to him. We review sentences for their reasonableness, United States v. Booker, 543 U.S. 220, 260-63, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), under an abuse-of-discretion standard, Gall v. United States,—U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). A sentence that falls within a properly calculated advisory guidelines range is presumed reasonable. Rita v. United States,—U.S.-, 127 S.Ct. 2456, 2462-63, 168 L.Ed.2d 203 (2007); United States v. Miranda, 505 F.3d 785, 791 (7th Cir.2007). On the other hand, there is not a “presumption of unreasonableness for sentences outside the Guidelines range.” Gall, 128 S.Ct. at 595. In imposing a sentence outside the guidelines range, a judge need not provide “extraordinary” justifications. Id. at 595. But, he must “give serious consideration to the extent of any departure from the Guidelines and must explain his conclusion that an unusually lenient or an unusually harsh sentence is appropriate in a particular case with sufficient justifications.” Id. Although the degree of variance outside of the guidelines is a pertinent consideration on review, the Supreme Court has rejected the application of mathematical formulas that use “the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” Id. at 595; see also United States v. McIlrath, 512 F.3d 421, 426 (7th Cir.2008). A sentencing judge undertakes a two-step process when calculating a defendant’s sentence. See Miranda, 505 F.3d at 791; United States v. Robinson, 435 F.3d 699, 700-01 (7th Cir.2006). The judge is first required to calculate the proper advisory guidelines range. Gall, 128 S.Ct. at 596 (“[T]he Guidelines should be the starting point and the initial benchmark.”). Then, after hearing the parties’ arguments, the judge must consider the factors enunciated in 18 U.S.C. § 3553(a) to decide whether the defendant’s sentence should fall within that guidelines range. Id.; Miranda, 505 F.3d at 791 (“Although the guidelines are treated as advisory after Booker, the application of section 3553(a) is mandatory.”); United States v. Wachowiak, 496 F.3d 744, 747-48 (7th Cir.2007); Robinson, 435 F.3d at 700-01. Sentencing judges" }, { "docid": "21236306", "title": "", "text": "Of course, the district court can place significant weight on the guidelines without rendering the resulting sentence unreasonable. The sentence imposed must be reasonable with respect to the factors enumerated in § 3553(a), and among those factors is the advisory guidelines. See 18 U.S.C. § 3553(a)(4)(A). Indeed, the advisory guidelines themselves “seek to embody the § 3553(a) considerations.” Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2464, 168 L.Ed.2d 203 (2007); see also United States v. Gama-Gonzalez, 469 F.3d 1109, 1110-11 (7th Cir.2006). Nevertheless, Mr. Dale asserts that the district court relied on the advisory guidelines to the near-exclusion of other factors and that this approach was no different than treating the advisory guidelines as mandatory, thereby violating his Sixth Amendment rights under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We cannot accept this argument. Judicial fact-finding at sentencing offends the Sixth Amendment only when the applicable “law forbids a judge to increase a defendant’s sentence unless the judge finds facts that the jury did not find (or the offender did not concede).” Rita, 127 S.Ct. at 2466. The Supreme Court in Booker held that such Sixth Amendment problems arise when a sentence “is imposed under a mandatory sentencing scheme.” United States v. White, 443 F.3d 582, 592 (7th Cir.2006). However, as long as the district court treats the guidelines as advisory, the constitutional infirmity identified in Booker is eliminated. Id. Here, the district court stated explicitly that it considered the guidelines advisory. The court also stated that it had taken into account Mr. Dale’s personal characteristics when arriving at his sentence. Therefore, we cannot conclude that the district court’s reliance on the advisory guidelines rendered his sentence unreasonable. 2. Mr. Dale next asserts that the district court failed to account sufficiently for § 3553(a)’s sentencing factors. Post-Booker, we require the sentencing court to follow a two-part procedure in arriving at its sentence. United States v. Holt, 486 F.3d 997, 1004 (7th Cir.2007). First, the court must calculate the defendant’s advisory guidelines sentencing range. Id. Second, the court then must consider" }, { "docid": "5622484", "title": "", "text": "in section 3553(a). United States v. Booker, 543 U.S. 220, 245-46, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); see also United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (“It is now, however, emphatically clear that the Guidelines are guidelines—that is, they are truly advisory. A district court may not presume that a Guidelines sentence is reasonable; it must instead conduct its own independent review of the sentencing factors, aided by the arguments of the prosecution and defense.”). A sentencing court shall “state in open court the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). If the sentence is not of the kind prescribed by, or is outside the range of, the Sentencing Guidelines referred to in section 3553(a)(4) of title 18, the court shall indicate the specific reasons for imposing a different sentence. See 18 U.S.C. § 3553(c)(2). These “reasons must also be stated with specificity in a statement of reasons form.” Id. Even though the Guidelines are now advisory rather than manda tory, Booker, 543 U.S. at 245-46, 125 S.Ct. 738, the sentencing court must still adhere to the requirements of 18 U.S.C. § 3553(c)(2). United States v. Jones, 460 F.3d 191, 197 (2d Cir. 2006). The sentencing court’s written statement of reasons shall be “a simple, fact-specific statement explaining why the Guidelines range did not account for a specific factor or factors under § 3553(a).” United States v. Rattoballi, 452 F.3d 127, 138 (2d Cir. 2006), abrogated in part on other grounds by Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). The statement should demonstrate that the court “ ‘considered the parties’ arguments’ and that it has a ‘reasoned basis for exercising [its] own legal decisionmaking authority.’ ” Cavera, 550 F.3d at 193 (quoting Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). In view of the excessive incarceration rates in the recent past and their unnecessary, deleterious effects on individuals sentenced, society, and our economy, parsimony in incarceration is to be prized. See, e.g., 18 U.S.C." }, { "docid": "11759972", "title": "", "text": "history. The government contends Rouillard’s extensive and dangerous criminal past and repeated violations of the terms of his probation justify the upward departure, however, the government concedes no factors justify the extent of the upward variance, which the government alleges results in unwarranted sentencing disparities. II. DISCUSSION After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the sentencing court first must calculate the advisory Guidelines sentencing range. United States v. Ture, 450 F.3d 352, 356 (8th Cir.2006). After the Guidelines range has been calculated, the sentencing court should consider whether any traditional departures are appropriate in determining the Guidelines range sentence. United States v. Bueno, 443 F.3d 1017, 1022 (8th Cir.2006). Calculating an appropriate Guidelines range sentence is “the critical starting point,” United States v. Mashek, 406 F.3d 1012, 1016 n. 4 (8th Cir.2005), to appraise any sentence because the Guidelines incorporate the other § 3553(a) factors and “are the product of years of careful study,” United States v. McDonald, 461 F.3d 948, 952-53 (8th Cir.2006) (quoting United States v. Shafer, 438 F.3d 1225, 1227 (8th Cir.2006)), petition for cert. filed, — U.S.L.W. - (Nov. 28, 2006) (No. 06-8086). Only after the sentencing court has calculated a Guidelines range sentence should the court consider the other factors set forth at § 3553(a) to determine whether to impose a non-Guidelines range sentence. United States v. Haack, 403 F.3d 997, 1003 (8th Cir.), cert. denied, — U.S. ——, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005). A. Guidelines Range Calculation We review de novo the district court’s interpretation and application of the advisory Guidelines and review for clear error its findings of fact. United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir.2005). Before departing, the district court concluded Rouillard’s Guidelines sentencing range was 30 to 37 months’ imprisonment. Both Rouillard and the government agree the district court properly calculated the advisory Guidelines sentencing range before it departed. Accordingly, we only review the departure and variance. B. Departure We review for abuse of discretion any departures from the advisory sentencing Guidelines. Mashek, 406 F.3d at 1017. “Although" }, { "docid": "22243719", "title": "", "text": "his sentence based on facts not found by a jury. In Booker, the Supreme Court held the Sentencing Guidelines violate the Sixth Amendment to the extent they require a court to impose a sentence based on facts not found by a jury. Booker, 543 U.S. at 245, 125 S.Ct. 738. The Court remedied the Guidelines’ unconstitutionality by excising and severing the statutory provisions that made the Guidelines mandatory. Id. Although Booker made the Guidelines “effectively advisory,” id., the sentencing court must still “consult [the] Guidelines and take them into account when sentencing,” id. at 264, 125 S.Ct. 738. The sentencing court may also “tailor the sentence in light of other statutory concerns as well,” specifically the factors located at 18 U.S.C. § 3553(a). Id. at 245-46, 125 S.Ct. 738. Sentences that fall within the Guideline range are entitled to a presumption of reasonableness on appellate review. United States v. Green, 436 F.3d 449, 456-57 (4th Cir.2006); see Rita v. United States, 551 U.S.-, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007) (holding the courts of appeals may apply a presumption of reasonableness to within-Guidelines sentences). In Rita, the Supreme Court recognized that BookeBs remedial scheme and the presumption of reasonableness may result in sentences based on facts found by a judge. See Rita, 127 S.Ct. at 2465-66. Such a result does not present a constitutional issue, however, because the Court’s “Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence.” Id. Thus, our precedents holding that district courts must make the factual findings necessary and appropriate to reach the correct sentence are in accord with Rita. See Green, 436 F.3d at 455; Hughes, 401 F.3d at 546. The district court therefore did not violate appellant’s Sixth Amendment rights by imposing a sentence based on facts not found by a jury. When applying the Guidelines in an advisory manner, the district court can make factual findings using the preponderance of the evidence standard. United States v. Morris, 429 F.3d 65, 72 (4th Cir.2005)." }, { "docid": "22896726", "title": "", "text": "predatory sexual conduct by adults.” Vang, 128 F.3d at 1069. It would be anomalous to allow prosecution of those individuals who successfully place a specific, identified child in danger, yet set free those who possess the prohibited intent, but are prevented from placing a real child in danger by effective law enforcement. E. Finally, Kelly challenges the district court’s imposition of a 63-month sentence. We review a district court’s sentence for reasonableness. See United States v. Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir.2005). Booker requires a district court to calculate the appropriate guidelines range, making the requisite, appropriate factual findings and considering whether any authorized departures may be appropriate. See United States v. Davenport, 445 F.3d 366, 370 (4th Cir.2006). The district court should then determine an appropriate sentence, taking into account both the advisory sentencing guidelines range and the factors set forth in 18 U.S.C. § 3553(a). Id. The sentence must be “sufficient, but not greater than necessary” to achieve the goals of sentencing. § 3553(a). And importantly, “a sentence within the proper advisory Guidelines range is presumptively reasonable.” United States v. Johnson, 445 F.3d 339, 341 (4th Cir.2006); see Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2462-68, 168 L.Ed.2d 203 (2007) (upholding a presumption of reasonableness for sentences within guidelines range). In this case, the district court properly calculated the guidelines range as between 51 and 63 months, based on Kelly’s offense level of 24 and criminal history category of I. It then imposed a sentence of 63 months, the top of the advisory guidelines range. In doing so, the district court explicitly rejected Kelly’s argument that because no actual minor child was involved and because Kelly’s prior conviction was 22 years prior to the charged crime, Kelly should be sentenced at the lower end of the guidelines range. On the record presented, the district court appropriately found that Kelly’s “predilection for sexual violence” and the fact that Kelly took substantial steps toward having sex with a minor militated against" }, { "docid": "20004752", "title": "", "text": "better sentencing practices. It will thereby promote uniformity in the sentencing process.”). Also severed and excised was the provision of the statute requiring de novo review of departures from the Guidelines, 18 U.S.C. § 3742(3), because that provision depended on the mandatory nature of the Guidelines. Booker, 543 U.S. at 245, 125 S.Ct. 738. Appellate review of all sentences, whether inside or outside of the Guideline range, was limited to “unreasonableness.” Id. at 246, 125 S.Ct. 738. Booker and cases that followed did not purport to lift the heavy weight of the Guidelines and their Commentary on the scales of justice. They could not be ignored under section 3553(a). Courts of appeals at first held that although the Guidelines were now advisory, district courts could not substitute their own judgment of policy for the Sentencing Commission’s. See e.g., United States v. Castillo, 460 F.3d 337, 356 (2d Cir.2006) (“[Nothing in Booker suggests that it is the task of district court judges to pronounce broad policy choices rather than specific sentences based on the specific facts of a case.”); United States v. Pho, 433 F.3d 53, 64-65 (1st Cir.2006) (“[Sentencing decisions must be done case by case and must be grounded in case-specific considerations, not in general disagreement with broad-based policies enunciated by Congress or the Commission, as its agent.”); United States v. Eura, 440 F.3d 625, 633-34 (4th Cir.2006) (holding that district courts cannot give a lower sentence based on a policy disagreement with the Sentencing Commission); United States v. Williams, 456 F.3d 1353, 1364 (11th Cir.2006) (same). In three post-Booker decisions, Rita v. United States, — U.S. -, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), Gall v. United States, — U.S.-, 128 S.Ct. 586,169 L.Ed.2d 445 (2007), and Kimbrough v. United States, — U.S. -, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), the Supreme Court elaborated on the effect of the Guidelines in light of their now advisory nature. In Rita, the Court held that courts of appeals can apply a presumption that a sentence imposed by the district court within a properly calculated Guideline range is reasonable. Rita," }, { "docid": "8512954", "title": "", "text": "imposed. Jeremiah appeals, arguing that the District Court was required to consider the potential federal/state sentencing disparity under 18 U.S.C. § 3553(a)(6) (2000) and that the court’s failure to do so resulted in an unreasonable sentence. We affirm. Although application of the Sentencing Guidelines is- no longer mandatory, district courts are still required to consult the Guidelines and take them into account in calculating a defendant’s sentence. United States v. Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). A district court must calculate a defendant’s advisory Guidelines sentencing range based on his total offense level, criminal history category, and any appropriate departures. See United States v. Shannon, 414 F.3d 921, 923 (8th Cir.2005). The court may also vary from the advisory Guidelines range based on the factors set forth in 18 U.S.C. § 3553(a) as long as the resulting sentence is reasonable. See Booker, 543 U.S. at 261, 125 S.Ct. 738; United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir.2005). Proper application of the Guidelines “remains the critical starting point” for fashioning a reasonable sentence under § 3553(a), United States v. Lindquist, 421 F.3d 751, 753 (8th Cir.2005), and a sentence within the properly calculated Guidelines range is presumed to be reasonable, see United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.), cert. denied, — U.S.-•, 126 S.Ct. 840, 163 L.Ed.2d 715 (2005). In determining whether a district court properly calculated a defendant’s Guidelines sentencing range, we review the court’s findings of fact for clear error and its interpretation and application of the Guidelines de novo. See Mashek, 406 F.3d at 1017. We review the ultimate sentence for reasonableness in light of the factors described in § 3553(a). See United States v. May, 413 F.3d 841, 844 (8th Cir.), cert. denied, — U.S.-, 126 S.Ct. 672, 163 L.Ed.2d 541 (2005). The District Court properly calculated Jeremiah’s Guidelines sentencing range, and Jeremiah does not argue otherwise. Rather, Jeremiah’s sole argument on appeal is that in order to impose a reasonable sentence-, the District Court was required by § 3553(a)(6) to consider the sentences imposed in" }, { "docid": "21237976", "title": "", "text": "departure under Guideline §§ 5H1.6 (concerning family ties and responsibilities as well as community ties), 5H1.11 (concerning charitable and employment-related contributions as well as prior good works), and 5K2.0 (concerning grounds for a departure not otherwise considered in the Guidelines). The district court declined to grant a further downward departure on these grounds because “the reduction given under [Guideline § 5H1.4] is appropriate.” The court sentenced Coughlin to no imprisonment, 5 years’ probation of which 27 months is home detention, a $50,000 fine, and $411,218 in restitution. In the alternative, if our court ruled on appeal that the district court abused its discretion in departing downward pursuant to Guideline § 5H1.4, the district court imposed an identical sentence as a non-Guidelines sentence, adopting the previous findings for a § 3558(a) analysis. The district court concluded “home detention with electronic monitoring is going to be in [Coughlin’s] best interests.” This appeal followed. II. DISCUSSION After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the sentencing court first must calculate the advisory Guidelines sentencing range. See United States v. Ture, 450 F.3d 352, 356 (8th Cir.2006). Next, the sentencing court -must decide whether a traditional departure from the advisory Guidelines sentencing range is appropriate based either on Parts H or K of Chapter Five of the Guidelines, policy statements, or commentary. See United States v. Dalton, 478 F.3d 879, 881 (8th Cir.2007). The sentencing court has then arrived at a final advisor ry Guidelines sentencing range. Id. Then, the sentencing court must consider the factors set forth at 18 U.S.C. § 3553(a) to determine whether to impose a sentence within or without the final advisory Guidelines sentencing range. See id.; United States v. Rouillard, 474 F.3d 551, 555 (8th Cir.2007). The sentencing court must impose a. sentence tailored to the § 3553(a) factors. See Booker, 543 U.S. at 245-46, 125 S.Ct. 738. On appeal, we address the reasonableness or unreasonableness of the sentence. See Rita v. United States, 551 U.S. —-, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007); Booker, 543 U.S. at 261, 125 S.Ct." }, { "docid": "11759971", "title": "", "text": "an advisory Guidelines range sentence of 46 to 57 months’ imprisonment. The district court then stated: Under the nature and circumstances of [Rouillard], the nature and circumstances of the offenses, and the history and characteristics of [Rouillard] under 18 U.S.C. § 3553(a), [Rouillard’s] extensive criminal history beginning at age 12 actually, his prior felony convictions for theft in the third degree, drug possession third offense, and drug possession fourth offense, his extensive substance abuse history, his history of probation violations, fact that he owes $23,000 in child support arrearages, his minimum employment history.... So based on all those factors, I’m departing [sic] upward. Thereafter, the district court sua sponte varied upward to the statutory maximum sentence of 120 months’ imprisonment, reasoning the statutory maximum sentence was necessary in this case “to reflect the seriousness, to promote respect for the law, and to provide just punishment for the offense.” Rouillard appeals. Rouillard contends the district court should have sentenced him within the advisory Guidelines range and erred by departing and varying upward based on his criminal history. The government contends Rouillard’s extensive and dangerous criminal past and repeated violations of the terms of his probation justify the upward departure, however, the government concedes no factors justify the extent of the upward variance, which the government alleges results in unwarranted sentencing disparities. II. DISCUSSION After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the sentencing court first must calculate the advisory Guidelines sentencing range. United States v. Ture, 450 F.3d 352, 356 (8th Cir.2006). After the Guidelines range has been calculated, the sentencing court should consider whether any traditional departures are appropriate in determining the Guidelines range sentence. United States v. Bueno, 443 F.3d 1017, 1022 (8th Cir.2006). Calculating an appropriate Guidelines range sentence is “the critical starting point,” United States v. Mashek, 406 F.3d 1012, 1016 n. 4 (8th Cir.2005), to appraise any sentence because the Guidelines incorporate the other § 3553(a) factors and “are the product of years of careful study,” United States v. McDonald, 461 F.3d 948, 952-53 (8th Cir.2006) (quoting United States" }, { "docid": "22301625", "title": "", "text": "the government’s position that he should receive a two-level increase for reckless endangerment because he fled through a nearby residence. See U.S.S.G. § 3C1.2. These rulings resulted in a guidelines sentencing range of 37 to 46 months in prison, which is not at issue on appeal. Recognizing that the guidelines are advisory under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court sentenced Claiborne to 15 months in prison, concluding that “the 37 month low end of the range is, in my view, excessive” because of Claiborne’s lack of criminal history, young age, the small quantity of drugs involved, and the court’s opinion that Claiborne was not likely to commit similar crimes in the future. The government appeals, arguing that 15 months is an unreasonable downward variance from the guidelines range. Under Booker, the sentencing guidelines are no longer a mandatory regime. Instead, the district court must take the advisory guidelines into account together with other sentencing factors enumerated in 18 U.S.C. § 3553(a). 543 U.S. at 259-60, 125 S.Ct. 738. In fashioning an appropriate sentence, the district court must first calculate the applicable guidelines sentencing range. United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir.), cert. denied — U.S. -, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005). The court may then impose a sentence outside the range in order to “tailor the sentence in light of the other statutory concerns” in § 3553(a). Booker, 543 U.S. at 245-46, 125 S.Ct. 738. When the district court has correctly determined the guidelines sentencing range, as in this case, we review the resulting sentence for reasonableness, a standard akin to our traditional review for abuse of discretion. The Guidelines were fashioned taking the other § 3553(a) factors into account and are the product of years of careful study. Thus, the guidelines sentencing range, though advisory, is presumed reasonable. See United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.2005); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005). When the district court varies from the guidelines range based upon its analysis of" }, { "docid": "23012529", "title": "", "text": "96 months.... I haven’t imposed the maximum probably because you’ve earned those certificates. And I hope it’s not a game with you. Therefore, the court imposed a sentence of 8 years of imprisonment (18 months more than the high end of the guidelines range), 3 years of supervised release, and monetary penalties amounting to $300. Jackson timely appealed, challenging only his sentence. II. Discussion We review Jackson’s sentence for reasonableness under a deferential abuse-of-discretion standard. United States v. Omole, 523 F.3d 691, 696 (7th Cir.2008) (citing United States v. Booker, 543 U.S. 220, 260-63, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Gall v. United States, — U.S.-, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). Although a sentence that falls within a properly calculated guidelines range is entitled to a presumption of reasonableness, there is no corresponding presumption of unreasonableness for a non-guidelines sentence. Id. (citing Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2462-63, 168 L.Ed.2d 203 (2007), and Gall, 128 S.Ct. at 597). Our review involves a two-step process. First, we ensure that the sentencing judge did not commit any “significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range.” Gall, 128 S.Ct. at 597; see also Omole, 523 F.3d at 697. If the sentence is procedurally sound, we then evaluate its substantive reasonableness. The sentencing court must apply the factors set forth in 18 U.S.C. § 3553(a) in deciding whether to impose a sentence within the advisory guidelines range. United States v. Miranda, 505 F.3d 785, 791 (7th Cir.2007). Those factors, which are still mandatory after Booker (unlike the Sentencing Guidelines themselves), “are broad, vague, and open-ended,” leaving the sentencing judge with “considerable discretion to individualize the sentence to the offense and offender as long as the judge’s reasoning is consistent with § 3553(a).” United States v. Wachowiak, 496 F.3d 744, 748 (7th" }, { "docid": "22754945", "title": "", "text": "the sentence to be unreasonable, the government took a timely appeal, which we now consider. B. In United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court rendered the Sentencing Guidelines “effectively advisory.” Nevertheless, district courts in the post -Booker landscape must follow specific steps to arrive at an appropriate sentence. First, the district court must correctly calculate a defendant’s sentence under the now-advisory guidelines. See Gall v. United States, 552 U.S.-, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007) (“As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark.”); Rita v. United States, 551 U.S. -, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007). A sentence based on an improperly calculated guidelines range will be found unreasonable and vacated. See Gall, 128 S.Ct. at 597 (noting that “improperly calculating” the applicable Guidelines range constitutes a “significant procedural error”). Next, the district court must allow “both parties an opportunity to argue for whatever sentence they deem appropriate.” Gall, 128 S.Ct. at 596. In light of these arguments, the district court must then “consider all of the § 3553(a) factors,” id., keeping in mind the “overarching provision instructing district courts to ‘impose a sentence sufficient, but not greater than necessary’ to accomplish the goals of sentencing,” Kimbrough v. United States, 552 U.S. -, 128 S.Ct. 558, 570, 169 L.Ed.2d 481 (2007) (quoting 18 U.S.C. § 3553(a)); see also Gall, 128 S.Ct. at 596 & n. 6. In so doing, the court “must make an individualized assessment based on the facts presented” and cannot “presume that the Guidelines range is reasonable.” Gall, 128 S.Ct. at 596-97. If the sentencing court believes “an outside-Guidelines sentence is warranted, [it] must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Id. at 597. Finally, the district court “must adequately explain the chosen sentence.” Id. This “allow[s] for meaningful appellate review” and “promote[s] the perception of fair sentencing.” Id. Notably, if the court imposes “an" } ]

[ { "docid": "22655324", "title": "", "text": "condition, vulnerability in prison and the military service.” Id., at 65. Rita presented evidence and argument related to these three factors. The Government, while not asking for a sentence higher than the report’s recommended Guidelines range, said that Rita’s perjury had interfered with the Government’s potential “obstruction of justice” claim against InterOrdnance and that Rita, as a former Government criminal justice employee, should have known better than to commit perjury. Id., at 74-77. The sentencing judge asked questions about each factor. After hearing the arguments, the judge concluded that he was “unable to find that the [report’s recommended] sentencing guideline range ... is an inappropriate guideline range for that, and under 3553 ... the public needs to be protected if it is true, and I must accept as true the jury verdict.” Id., at 87. The court concluded: “So the Court finds that it is appropriate to enter” a sentence at the bottom of the Guidelines range, namely, a sentence of imprisonment “for a period of 33 months.” Ibid. D On appeal, Rita argued that his 33-month sentence was “unreasonable” because (1) it did not adequately take account of “the defendant’s history and characteristics,” and (2) it “is greater than necessary to comply with the purposes of sentencing set forth in 18 U. S. C. § 3553(a)(2).” Brief for Appellant in No. 05-4674 (CA4), pp. i, 8. The Fourth Circuit observed that it must set aside a sentence that is not “reasonable.” The Circuit stated that “a sentence imposed within the properly calculated Guidelines range ... is presumptively reasonable.” 177 Fed. Appx., at 358 (internal quotation marks and citations omitted). It added that “while we believe that the appropriate circumstances for imposing a sentence outside the guideline range will depend on the facts of individual cases, we have no reason to doubt that most sentences will continue to fall within the applicable guideline range.” The Fourth Circuit then rejected Rita’s arguments and upheld the sentence. Ibid, (internal quotation marks omitted). E Rita petitioned for a writ of certiorari. He pointed out that the Circuits are split as to the use" } ]

[ { "docid": "7733820", "title": "", "text": "that although the district court’s Guidelines calculation was technically correct, consideration of the § 3553(a) factors necessitated a below-Guidelines sentence. The first argument cited § 3553(a)(2)(C) and claimed that a Guidelines range accounting for his 1985 conviction overstated the seriousness of his criminal history by elevating it to a Category 3, and thus would be greater than necessary to protect the public from further crimes of the defendant. The second argument cited § 3553(a)(2)(A) and claimed that a Guidelines range accounting for his 1985 conviction overstated the seriousness of his reentry offense by imposing a 16-level offense enhancement, pursuant to § 2L1.2(b)(l)(A). We pause for a point of clarity and underscore that Marin-Castano essentially split one argument into “two principal arguments” by dividing it between the horizontal (criminal history) and vertical (offense level) axes of the Guidelines Sentencing Table. After sentencing, MarinCastano appealed, claiming the district court committed procedural error by failing to properly address both of these arguments. In addition to procedural error, MarinCastano also claims the sentence imposed was substantively unreasonable because it failed to give proper weight to the age of Marin-Castano’s 1985 conviction, in accordance with the 18 U.S.C. § 3553(a) factors. We disagree. We find neither procedural error, nor substantive unreasonableness with regard to the district court’s imposed sentence of 46 months’ imprisonment. Because Marin-Castano argues that the court committed both procedural and substantive error, we employ more than one standard of review. First, we conduct a de novo review for any procedural error. United States v. Curby, 595 F.3d 794, 796 (7th Cir.2010). If we determine that the district court committed no procedural error, we review the sentence for substantive reasonableness under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In this circuit, we do apply a presumption of reasonableness to all within-Guidelines sentences. It is not a binding presumption, but it applies in every case and it is the defendant’s burden to overcome it. See Gall, 552 U.S. at 51, 128 S.Ct. 586 (an appellate court may apply a presumption of reasonableness to" }, { "docid": "22850269", "title": "", "text": "using an abuse-of-discretion standard, regardless of “whether [the sentence is] inside, just outside, or significantly outside the Guidelines range.” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “Our reasonableness review has procedural and substantive components.” United States v. Boulware, 604 F.3d 832, 837 (4th Cir.2010). First, we must determine whether the district court committed any procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range. Gall, 552 U.S. at 51, 128 S.Ct. 586. Only if we determine that the district court has not committed procedural error do we proceed to assess “the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. Appellants argue that the district court committed procedural error because it offered no individualized rationale to justify the sentences it imposed. We are constrained to agree. Because we conclude that the sentences were procedurally unreasonable, we address only the procedural component in this case. A. Section 3553 contains an overarching provision instructing district courts to “impose a sentence sufficient, but not greater than necessary,” to accomplish the goals of sentencing, including “to reflect the seriousness of the offense,” “to promote respect for the law,” “to provide just punishment for the offense,” “to afford adequate deterrence to criminal conduct,” and “to protect the public from further crimes of the defendant.” Kimbrough v. United States, 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (quoting 18 U.S.C. § 3553(a)). The statute requires a sentencing court to consider numerous factors, such as the Guidelines sentencing range, “the nature and circumstances of the offense,” “the history and characteristics of the defendant,” “any pertinent policy statement” from the Sentencing Commission, and “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a); see Kimbrough, 552 U.S. at 101," }, { "docid": "11302348", "title": "", "text": "attempted prison escape, this time in Virginia. Day has shown none of these factual findings to be clear error. See United States v. Chandia, 675 F.3d 329, 337 (4th Cir.2012). B. Day next argues that his prison sentence should be vacated as substantively unreasonable. “Substantive reasonableness examines the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a).” United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir.2010). If “the sentence is within the Guidelines range,” we are permitted to apply on appeal “a presumption of reasonableness.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Our review of the sentencing transcript reveals that the trial court closely considered the § 3553(a) sentencing factors and chose the 1,260-month sentence based on the serious nature of Day’s offense, his dangerous character, and the need to protect the public. With regard to the severity of the offense, the court observed that Day’s scheme “was a calculated, sophisticated theft” that exposed the men and women of the armed services to serious risk of injury, or worse. For instance, the court noted that because of Day’s scheme “[t]here could be a soldier in the field who is wounded and needs cover from a jet, and that jet has the wrong antenna shipped out there and is unable to provide that cover.” Or “[t]here could be a soldier in the field who needs a Humvee to come pick him up because he is wounded and that Humvee can’t come because the wrong parts were there.” “Day never thought about those impacts on others, or he thought about them and said, I am going to go ahead with my offense any way.” At bottom, the court concluded, the “nature and circumstances of [his] offense are just absolutely vile.” With respect to the defendant’s character, the court repeatedly emphasized that Day possesses “absolutely no conscience,” noting that he “steals everything he can lay his hands on,” and “has no regret about dragging his" }, { "docid": "3051505", "title": "", "text": "the judge’s own professional judgment.”). In sentencing Tindall within the advisory guidelines range, the district court explained, “the sentence I am about to impose is the most reasonable sentence upon consideration of all factors enumerated in 18 United States Code 3553.” R., Vol. 3 at 25. A one-sentence explanation accompanying a within-guidelines sentence—in the absence of the need to address specific § 3553(a) arguments brought to the district court’s attention— satisfies the district court’s duty to impose a procedurally reasonable sentence. Ruiz-Terrazas, 477 F.3d at 1199 (holding “Section 3553(c) requires the court to provide only a general statement” in explaining the imposition of a sentence falling within the Guidelines); see also Cereceres-Zavala, 499 F.3d at 1217 (finding “the Supreme Court’s latest pronouncement in Rita v. United States on the requirements of § 3553(c) in accordance” with RuizTerrazas ). Thus, the district court committed no procedural error in explaining Tindall’s sentence. Substantive Reasonableness. We review the district court’s sentence for substantive reasonableness in light of the § 3553(a) sentencing factors. United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir.2006). The district court has significant discretion in sentencing, and our review for reasonableness, regardless of whether the sentence falls inside or outside the advisory Guidelines, is a review for abuse of discretion. Gall, 128 S.Ct. at 597; Rita, 127 S.Ct. at 2456. In this case, the district court sentenced Tindall within the guidelines range and we have already concluded the court did not err in calculating the range itself. The binding precedent in our court is that “a sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness.” Kristl, 437 F.3d at 1054; see also Gall, 128 S.Ct. at 597 (explaining that the presumption is permissible but not required); Rita, 127 S.Ct. at 2456 (same). Nevertheless, the presumption of reasonableness “is a deferential standard that either the defendant or the government may rebut by demonstrating that the sentence is unreasonable when viewed against the other factors delineated in § 3553(a).” Kristi, 437 F.3d at 1054. Tindall cannot overcome the presumptive reasonableness of his sentence merely" }, { "docid": "19782933", "title": "", "text": "the government pointed out, the co-defendants to whom Mendoza compared himself had different criminal histories, received sentence reductions for their cooperation, and were involved with lesser amounts of methamphetamine. (R. 1023-24). The court explicitly stated that it had “fully considered all the purposes of sentencing set out in our statutes, among those ... Section 3553(a) in fashioning a sentence that is sufficient but not greater than necessary to comply with all the purposes of sentencing.” (R. 1035-36). The court exercised its discretion by adhering to the properly-calculated guideline range and imposed a sentence of 360 months. The sentencing disparities among Mendoza and his co-defendants are not unwarranted, because many defendants played a lesser role than did Mendoza, were involved with lesser amounts, and received reductions for their cooperation. There is no error in the court’s consideration of § 3553 factors. V. Substantive Reasonableness of the Sentence Mendoza challenges the sentence as unduly harsh and therefore unreasonable. That argument has no merit. We review the substantive reasonableness of the sentence for abuse of discretion. Duhon, 541 F.3d at 395. The court imposed a sentence at the low end of the guideline range. The essence of Mendoza’s argument is that the court should have used its discretion to impose a lower sentence outside the range because of § 3553 factors. In Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007), the Court stated that “[i]f the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness.” The only argument Mendoza offers for a deviation below the range is that the objectives of § 3553 could possibly be met by a sentence of less than 360 months. He does not state why the district court’s decision to adhere to the guidelines is unreasonable under an abuse-of-discretion standard. There is no reason to disturb the sentence, and we apply the presumption of reasonableness authorized by Gall. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied, - U.S. -, 129 S.Ct. 624, 172 L.Ed.2d 617" }, { "docid": "11302347", "title": "", "text": "evidence demonstrated Day’s effort to conceal his connection to the scheme’s proceeds; and evidence concerning his watch .purchases showed one in-kind medium through which Day received proceeds from the scheme. The trial court did not abuse its discretion in admitting this evidence. VI. We turn now to Day’s challenges to his sentence of imprisonment. Specifically, Day argues that his 1,260-month prison sentence should be vacated because it was both procedurally and substantively- unreasonable. We reject each argument for the reasons below. A. Day argues that the district court committed procedural error when it imposed an unwarranted two-level enhancement for obstruction of justice, resulting in an incorrect calculation of his Guidelines range. The trial court’s obstruction enhancement was proper for many reasons, however, among them that Day had attempted to bribe Mexican officials in an effort to escape from custody. Day also physically tried to escape from Mexican authorities. Further, Day had formulated a.plan to enlist Mexican cartel members to conduct an attack on a prison van in which he would be transported in yet another attempted prison escape, this time in Virginia. Day has shown none of these factual findings to be clear error. See United States v. Chandia, 675 F.3d 329, 337 (4th Cir.2012). B. Day next argues that his prison sentence should be vacated as substantively unreasonable. “Substantive reasonableness examines the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a).” United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir.2010). If “the sentence is within the Guidelines range,” we are permitted to apply on appeal “a presumption of reasonableness.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Our review of the sentencing transcript reveals that the trial court closely considered the § 3553(a) sentencing factors and chose the 1,260-month sentence based on the serious nature of Day’s offense, his dangerous character, and the need to protect the public. With regard to the severity of the offense, the court observed that Day’s scheme" }, { "docid": "8988095", "title": "", "text": "sentence, concluding that the advisory guidelines range did not sufficiently account for the scope of Dehghani’s criminal conduct or his obstructive behavior while awaiting sentencing. The court found that Dehgha-ni was obsessed with child pornography, exposed his daughters to child pornography, expressed a desire to have sexual relations with children, and forced a minor to perform oral sex. Further, the district court considered Dehghani’s multiple attempts to obstruct justice, such as making baseless threats, sending a letter containing a white powdery substance, blaming others for his actions, hatching an escape plot, forging signatures on motions filed with the court, and lying under oath multiple times. The court properly considered these issues in evaluating “the nature and circumstances of the offense and history and characteristics of the defendant” under § 3553(a). Thus, because the district court considered the § 3553(a) factors and adequately explained the basis for its sen-fence, including its decision to impose a sentence above the advisory guidelines range, we find no procedural error. We next address Dehghani’s contention that his sentence was substantively unreasonable because the district court allegedly failed to consider certain mitigating factors. We review the substantive reasonableness of a sentence for abuse of discretion. Gall, 128 S.Ct. at 597. A sentence outside of the advisory guidelines range is not presumptively unreasonable. United States v. Braggs, 511 F.3d 808, 812 (8th Cir.2008). The record indicates that the district court, after hearing from Dehghani, his mother and his lawyer, considered Dehghani’s age, mental issues and childhood abuse. However, the court specifically found that those circumstances did not outweigh the seriousness of Dehghani’s conduct. Because the sentencing judge is in a superior position to weigh the relevant factors under § 3553(a), the fact that we might reasonably conclude “that a different sentence was appropriate is insufficient to justify reversal of the district court.” Gall, 128 S.Ct. at 597. We conclude that the district court did not abuse its discretion by sentencing Dehghani to 432 months’ imprisonment. III. CONCLUSION For the foregoing reasons, we affirm Dehghani’s conviction and sentence. . The Honorable Gary A. Fenner, United States District Judge" }, { "docid": "19782932", "title": "", "text": "the district court erred by not discussing the sentencing factors enumerated in 18 U.S.C. § 3553(a). Specifically, Mendoza challenges the sentencing disparity among co-defendants, an objection he raised in the district court. (R. 1021). Our review of sentencing decisions for procedural error, such as failure to consider § 3553 factors, is de novo. United States v. Duhon, 541 F.3d 391, 395 (5th Cir.2008). Where, as here, a court imposes a sentence within the properly-calculated guideline range, we “infer that the judge has considered all the factors for a fair sentence.” United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005). “[A] checklist recitation of the section 3553(a) factors is neither necessary nor sufficient for a sentence to be reasonable.” United States v. Smith, 440 F.3d 704, 707 (5th Cir.2006). Section 3553 requires courts to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). The district court considered arguments as to possible sentence disparities among Mendoza and his co-defendants. As the government pointed out, the co-defendants to whom Mendoza compared himself had different criminal histories, received sentence reductions for their cooperation, and were involved with lesser amounts of methamphetamine. (R. 1023-24). The court explicitly stated that it had “fully considered all the purposes of sentencing set out in our statutes, among those ... Section 3553(a) in fashioning a sentence that is sufficient but not greater than necessary to comply with all the purposes of sentencing.” (R. 1035-36). The court exercised its discretion by adhering to the properly-calculated guideline range and imposed a sentence of 360 months. The sentencing disparities among Mendoza and his co-defendants are not unwarranted, because many defendants played a lesser role than did Mendoza, were involved with lesser amounts, and received reductions for their cooperation. There is no error in the court’s consideration of § 3553 factors. V. Substantive Reasonableness of the Sentence Mendoza challenges the sentence as unduly harsh and therefore unreasonable. That argument has no merit. We review the substantive reasonableness of the sentence for abuse of discretion. Duhon, 541" }, { "docid": "2181582", "title": "", "text": "district court demonstrate its consideration of the imposition of a consecutive sentence in the particular case before it. These contentions relate to a number of the factors to be considered under § 3553(a), including the seriousness of Chavez’s offense, the need to promote respect for the law, and the need to afford adequate deterrence for separate violations of federal law. See 18 U.S.C. § 3553(a). In sum, we find nothing in the record to overcome our presumption that the district court weighed each of the § 3553(a) factors. See Rose, 185 F.3d at 1111. We therefore hold that the district court did not impose a proeedurally unreasonable sentence, let alone commit plain procedural error affecting Chavez’s substantial rights. B. Substantive Unreasonableness Chavez also alleges that his sentence is substantively unreasonable. We review the substantive reasonableness of a sentence for abuse of discretion. Gall, 552 U.S. at 51, 128 S.Ct. 586. In considering whether a defendant’s sentence is substantively reasonable, we examine “whether the length of the sentence is reasonable given all the circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).” United States v. Reyes-Alfonso, 653 F.3d 1137, 1145 (10th Cir.2011) (internal quotation marks omitted). A sentencing decision is substantively unreasonable if it “exceed[s] the bounds of permissible choice, given the facts and the applicable law.” United States v. McComb, 519 F.3d 1049, 1053 (10th Cir.2007) (internal quotation marks omitted). Further, we presume a sentence is reasonable if it is within the properly calculated guideline range. United States v. Kristi, 437 F.3d 1050, 1055 (10th Cir.2006). A defendant normally bears the burden of rebutting this presumption in light of the § 3553(a) factors. Id. Chavez suggests we should not apply the presumption of reasonableness to his sentence because at the time the sentence was imposed, the district court did not (and could not) know the full length of the sentence to be served, given that sentencing on the state charges was still pending. Under such circumstances, reasons Chavez, there is no Sentencing Guideline to apply and therefore the sentence cannot be within any" }, { "docid": "22102012", "title": "", "text": "a sentence of probation and community service. Indeed, we noted that the requirement for an “adequate explanation” exists when imposing any sentence, whether above, below, or within the recommended Guidelines range. Id. at 330. Although every sentence requires an adequate explanation, a more complete and detailed explanation of a sentence is required when departing from the advisory Sentencing Guidelines, and “‘a major departure should be supported by a more significant justification than a minor one.’ ” United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir.2010) (quoting Gall, 552 U.S. at 50, 128 S.Ct. 586). When imposing a sentence within the Guidelines, however, the explanation need not be elaborate or lengthy “because guidelines sentences themselves are in many ways tailored to the individual and reflect ‘approximately two decades of close attention to federal sentencing policy.’” United States v. Johnson, 587 F.3d 625, 639 (4th Cir.2009) (quoting United States v. Johnson, 445 F.3d 339, 342 (4th Cir.2006)); see also Carter, 564 F.3d at 330 (quoting Gall, 552 U.S. at 50, 128 S.Ct. 586). Generally, an adequate explanation for a Guidelines sentence is provided when the district court indicates that it is “rest[ing][its] decision upon the Commission’s own reasoning that the Guidelines sentence is a proper sentence (in terms of § 3553(a) and other congressional mandates) in the typical case, and that the judge has found that the case before him is typical.” Rita, 551 U.S. at 357, 127 S.Ct. 2456. In Rita, the defendant requested a downward departure because of his physical condition, his vulnerability in prison, and his military record and long military service. After the sentencing judge heard counsel’s argument, the judge concluded that he was unable to find that the [presentence] report’s recommended sentencing guideline range is an inappropriate Guideline range for that, and under 3553 the public needs to be protected if it is true, and I must accept as true the jury verdict.... So the Court finds that it is appropriate to enter a sentence at the bottom of the Guidelines range, namely, a sentence of imprisonment for a period of 33 months. Rita, 551 U.S." }, { "docid": "22933766", "title": "", "text": "we do not require the defendant to object in order to preserve the issue. See id; United States v. Castro-Juarez, 425 F.3d 430, 433-34 (7th Cir.2005). Thus, we do not review for plain error. Instead, we review merely for “reasonableness” of the sentence’s length. In this regard, [reasonableness review is guided by the factors set forth in 18 U.S.C. § 3553(a), which include the nature of the offense and characteristics of the defendant, as well as the need for the sentence to reflect the seriousness of the crime, to provide adequate deterrence, to protect the public, and to provide the defendant with needed training or treatment. Kristi, 437 F.3d at 1053 (internal citation omitted). A sentence within a properly calculated Guidelines range is entitled to a presumption of reasonableness. Id. at 1054. “This is a deferential standard that either the defendant, or the government may rebut by demonstrating that the sentence is unreasonable when viewed against the other factors delineated in § 3553(a).” Id. At sentencing, Mr. Torres-Duenas contended that the § 3553(a) factors, other than the Guidelines, warranted a lower sentence. In particular, he asserted that the age of his prior conviction, his likely minor role in that offense, and the intervening lack of any serious involvement with law enforcement, warranted a variance from the Guidelines. The district court appropriately considered each of these contentions and noted countervailing considerations, including the absence of anything in the record showing that Mr. Torres-Duenas was a minor participant in the kidnapping, the serious nature of that crime, and Mr. Torres-Duenas’s multiple violations of immigration law. Mr. Torres-Duenas contends that the court missed the point, because “the advisory guidelines range already reflected that the offense was serious,” Aplt. Br. at 19, and already accounted for his prior immigration offenses. But the court did not impose a sentence above the Guidelines range, so there was no double counting. The court simply found that Mr. Torres-Duenas’s arguments could not justify imposition of a sentence below that range, although it did impose a sentence at the bottom of the range. The 41-month sentence imposed by the" }, { "docid": "22202280", "title": "", "text": "enhancements, the first element of the assumed error harmlessness inquiry is met in each case because the district court has expressly stated in a separate and particular explanation that it would have reached the same result, specifically citing to Savillon-Matute, Hargrove, and its review of the § 3553(a) factors. We therefore proceed to the second step of the inquiry, whether the district court’s sentences are substantively reasonable. When reviewing the substantive reasonableness of a sentence, we “ex-aminen the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a).” United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir.2010). And while we presume that sentences within the advisory Guidelines range are substantively reasonable, even sentences that vary outside the Guidelines range are entitled to due deference. See United States v. Engle, 592 F.3d 495, 504 (4th Cir.2010). While Juarez-Gomez provides no argument regarding the substantive reasonableness of his sentence, Erasto argues that his sentence is substantively unreasonable because he had participated in the conspiracy for a short amount of time, the length of his Guidelines range is based primarily upon the large quantity of drugs found in the trailer, he had no serious criminal history, and he faces additional sanctions in immigration proceedings following his incarceration. The record reflects that, in each case, the district court provided a thorough and persuasive § 3553(a) analysis, carefully considering each of the defendant’s arguments. With respect to Erasto, the district court recognized its “obligation to impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in the statute.” (J.A. No. 12-5030 165.) The district court noted that Erasto had conspired to distribute and possess with intent to distribute large quantities of both powder cocaine and cocaine base. It considered the short length of the conspiracy and concluded that it was not particularly mitigating due to the large quantity of cocaine found in the trailer. Despite the short duration of the conspiracy, the district court concluded, “you knew who you were" }, { "docid": "19991101", "title": "", "text": "review [a] sentence under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Our court “must first ensure that the district court committed no significant procedural error, such as ... failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id. If the sentence is procedurally sound, we “then consider the substantive reasonableness of the sentence imposed.” Id. at -, 128 S.Ct. at 597. Procedurally, a sentencing court should first accurately calculate a defendant’s sentencing Guidelines range and provide each party an opportunity to explain their desired sentence. See id. at -, 128 S.Ct. at 596. The district court-must then consider each of the § 3553(a) factors and conduct an individualized assessment to determine what sentence is appropriate given the facts in the particular case. Id. at-, 128 S.Ct. at 596-97. “In explaining the chosen sentence and analyzing the relevant § 3553(a) factors, ‘a district court is not required to provide a full opinion in every case, but must set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.’ ” United States v. Hill, 552 F.3d 686, 691 (8th Cir.2009) (quoting United States v. Robinson, 516 F.3d 716, 718 (8th Cir.2008)) (internal marks omitted). The district court accurately calculated Hernandez’s Guidelines range and provided Hernandez with the opportunity to argue for his desired sentence. Based upon Hernandez’s offense level of 32 and criminal history category III, Hernandez’s Guideline range was 151 to 188 months imprisonment. The court then considered the § 3553(a) factors and determined, based upon the facts before it, that a sentence at the bottom of the Guidelines range, 151 months, was appropriate. “Where, as here, the sentence imposed is within the advisory guideline range, we accord it a presumption of reasonableness.” United States v. Harris, 493 F.3d 928, 932 (8th Cir.2007) (citing Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2462-63, 168 L.Ed.2d 203 (2007); United" }, { "docid": "22601966", "title": "", "text": "of Appellant 19. Having neither the authority nor the inclination to do so, we decline to intrude upon the verdicts. D. Louthian also challenges his below-Guidelines sentence of forty-eight months as being excessive, in view of his age, poor health, and lack of a criminal history. For those reasons, he argues, the district court ought to have departed downward. We are unable, however, to review a sentencing court’s decision not to depart unless the court mistakenly believed that it lacked the authority to do so. See United States v. Brewer, 520 F.3d 367, 371 (4th Cir.2008). Before pronouncing sentence, the court recognized its obligation to “consider any applicable departure policy statements by the Sentencing Commission.” J.A. 1056. The court then considered Louthian’s request for a downward departure under the Guidelines, but concluded that none was appropriate. Because the court understood its authority, but declined to exercise it on the facts of this case, Louthian cannot contest on appeal the court’s failure to depart downward. To the extent that Louthian challenges his sentence as otherwise unreasonable, we are unmoved. We review a court’s sentencing decisions for abuse of discretion only. See Gall v. United States, 552 U.S. 38, 49-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Any sentence that is within or below a properly calculated Guidelines range is presumptively reasonable. See United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir.2008). Such a presumption can only be rebutted by showing that the sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) factors. . See United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.2006). Louthian makes no assertion that his forty-eight-month sentence was tainted by procedural flaws, such as errors in calculating the Guidelines range, erroneously treating the Guidelines as mandatory, failing to properly consider the § 3553(a) factors, predicating the sentence on clearly erroneous facts, or failing to adequately explain the sentence. See Gall, 552 U.S. at 51, 128 S.Ct. 586. Meanwhile, we cannot conclude that his sentence was substantively unreasonable. See United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir.2010). We observe that, although" }, { "docid": "22907696", "title": "", "text": "principle. Accordingly, we reject Mr. Martinez-Barragan’s third procedural challenge. B. Substantive Reasonableness Mr. Martinez-Barragan also challenges the substantive reasonableness of his sentence. He did not object to the length of his sentence at the sentencing hearing. “But when the claim is merely that the sentence is unreasonably long, we do not require the defendant to object in order to preserve the issue.” United States v. Torres-Duenas, 461 F.3d 1178, 1183 (10th Cir.2006). Rather, we review the length of the sentence for an abuse of discretion. Gall, 128 S.Ct. at 597 (“Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard.”). However, we presume a sentence within the correctly-calculated Guidelines range is reasonable. See Kristl, 437 F.3d at 1054; see also Gall, 128 S.Ct. at 597 (“If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness.”) Mr. Martinez-Barragan can rebut the presumptive reasonableness of his sentence by demonstrating its unreasonableness in light of the § 3553(a) factors. Kristl, 437 F.3d at 1054. In determining whether the district court properly considered the applicable Guidelines range, we review its legal conclusions de novo and its factual findings for clear error. Id. We, like the district court, are guided by the § 3553(a) factors when determining reasonableness. These factors include: the nature of the offense and characteristics of the defendant, as well as the need for the sentence to reflect the seriousness of the crime, to provide adequate deterrence, to protect the public, and to provide the defendant with needed training or treatment. Id. at 1053. Mr. Martinez-Barragan argues that his sentence is unreasonably long because he returned to the United States “in order to provide for his children,” and because his criminal history was over-represented. Aplt. Br. at 31. The district court was correct to reject these arguments. We have consistently observed that reentry of an ex-felon is a serious offense. See e.g., Davila-Salvatierra, 229 Fed-Appx. at 731. Additionally, as the district court observed, Mr. Martinez-Barragan’s felony" }, { "docid": "22202279", "title": "", "text": "reached the same result even if it had decided the guidelines issue the other way,” and (2) “the sentence would be reasonable even if the guidelines issue had been decided in the defendant’s favor.” Savillon-Matute, 636 F.3d at 123. In this case, the district court made it abundantly clear that it would have imposed the same sentence against both Juarez-Gomez and Erasto regardless of the advice of the Guidelines. For example, in pronouncing Juarez-Gomez’s sentence, the district court stated, I have considered all the 3553(a) factors[,] and [in] imposing this sentence I do believe that I have properly calculated the advisory guideline range. If, however, for some reason someone were to determine that I did not, I announce an alternative variant sentence pursuant to [Keene, 470 F.3d 1347, Savillon-Matute, 636 F.3d 119, and Hargrove, 701 F.3d 156]. (J.A. No. 13-4059 519; see J.A. No. 12-5030 170 (making a nearly identical statement in pronouncing Erasto’s sentence, quoted in full supra).) Thus, even assuming, arguendo, that the district court erred in its application of the challenged sentencing enhancements, the first element of the assumed error harmlessness inquiry is met in each case because the district court has expressly stated in a separate and particular explanation that it would have reached the same result, specifically citing to Savillon-Matute, Hargrove, and its review of the § 3553(a) factors. We therefore proceed to the second step of the inquiry, whether the district court’s sentences are substantively reasonable. When reviewing the substantive reasonableness of a sentence, we “ex-aminen the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a).” United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir.2010). And while we presume that sentences within the advisory Guidelines range are substantively reasonable, even sentences that vary outside the Guidelines range are entitled to due deference. See United States v. Engle, 592 F.3d 495, 504 (4th Cir.2010). While Juarez-Gomez provides no argument regarding the substantive reasonableness of his sentence, Erasto argues that his sentence is substantively unreasonable because" }, { "docid": "22347589", "title": "", "text": "— to the exclusion of the other § 3553(a) factors — in determining his sentence. Brewer also asserts that the court gave excessive weight to his advisory Guidelines range in its consideration of the § 3553(a) factors. On appeal, we review Brewer’s sentence under a deferential abuse-of-discretion standard, “first ensuring] that the district court committed no significant procedural error.” Gall v. United States, — U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Such procedural error may include, inter alia, “failing to consider the § 3553(a) factors” or “failing to adequately explain the chosen sentence.” Id. When a sentencing decision is determined to be “procedurally sound,” we “should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. In conducting our review, we may accord a presumption of reasonableness to a sentence that falls within the properly calculated Guidelines range. See Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007) (holding that “a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines”). At Brewer’s sentencing hearing, the court properly calculated his relevant Guidelines offense level as 25, his criminal history category as III, and the resulting advisory sentencing range as seventy to eighty-seven months. The court then imposed the minimum Guidelines sentence of seventy months, specifying that it did so after considering the § 3553(a) factors. Brewer contends that the court’s imposition of a sentence at the bottom of the Guidelines range was unreasonable, in that it focused exclusively on his prior criminal activity. This contention is, however, factually incorrect. The court possessed and weighed the evidence of Brewer’s history and personal characteristics, including his diminished capacity; considered the na ture and circumstances of his offense; and took into account his criminal history, specifically as it related to the necessity of protecting the public. The court then sentenced Brewer to seventy months, at the bottom of his advisory Guidelines range. In the wake of Rita and Gall, this sentence is not unreasonable. 2. On October" }, { "docid": "23630582", "title": "", "text": "United States v. Moore, 543 F.3d 891, 895-96 (7th Cir.2008) (discussing a “class of one” equal protection claim). See 18 U.S.C. 3742(a)(1) (permitting defendants to appeal a final sen tence that “was imposed in violation of law”)- Next, the district court committed no procedural errors when applying the sentencing guidelines to determine Curry’s sentence: It properly calculated the guidelines range, treated the guidelines as discretionary, considered the factors in § 3553(a), selected a sentence based on appropriate facts, and adequately explained the sentence it imposed. See Call, 552 U.S. at 51, 128 S.Ct. 586. Finally, Curry’s within-guide line sentence is not substantively unreasonable. See United States v. Rivera, 463 F.3d 598, 602 (7th Cir.2006) (“A sentence, such as this, that falls within a properly calculated Guidelines’ range is entitled to a rebuttable presumption of reasonableness.... [I]t will be a rare Guidelines sentence that is unreasonable.” (internal quotation marks and citations omitted)). We grant counsel’s request. III. Conclusion For the foregoing reasons, we Affirm the district court’s judgment and Grant Curry’s counsel’s request to withdraw and dismiss Curry’s appeal. . The factors in § 3553(a) include, among other things: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available.... 18 U.S.C. § 3553(a). . We note that there is some discussion in our case law regarding whether control over another participant is required for an enhancement or whether it is merely one factor that courts consider. See United States v. Gonzalez-Mendoza, 584 F.3d 726, 729 n. 3 (7th Cir.2009) (citing cases). Because we affirm the district court’s conclusion that Hernandez had control over other participants in the conspiracy," }, { "docid": "22601967", "title": "", "text": "we are unmoved. We review a court’s sentencing decisions for abuse of discretion only. See Gall v. United States, 552 U.S. 38, 49-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Any sentence that is within or below a properly calculated Guidelines range is presumptively reasonable. See United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir.2008). Such a presumption can only be rebutted by showing that the sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) factors. . See United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.2006). Louthian makes no assertion that his forty-eight-month sentence was tainted by procedural flaws, such as errors in calculating the Guidelines range, erroneously treating the Guidelines as mandatory, failing to properly consider the § 3553(a) factors, predicating the sentence on clearly erroneous facts, or failing to adequately explain the sentence. See Gall, 552 U.S. at 51, 128 S.Ct. 586. Meanwhile, we cannot conclude that his sentence was substantively unreasonable. See United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir.2010). We observe that, although the court denied Louthian’s request for a departure on account of age, health, and criminal history, it varied downward for those very reasons, imposing an aggregate sentence (48 months) that is less than half the low end of his Guidelines range (121 months). Louthi-an’s sentence therefore cannot be deemed unreasonable. E. Finally, Louthian contends that he was unfairly prejudiced when the prosecutors “chose to pursue” a criminal forfeiture against him after his trial. Br. of Appellant 26. Instead, Louthian maintains, the prosecution should have initiated a civil forfeiture action against him and the Squad, so that he could have lodged a cross-claim against the Squad for state-law indemnity. As the government responds, however, a criminal forfeiture of tainted assets in a health care fraud proceeding is mandatory. See 18 U.S.C. § 982(a)(7) (“[T]he court ... shall order the person to forfeit property, real or personal, that constitutes, or is derived, directly or indirectly, from gross proceeds traceable to the commission of the offense.” (emphasis added)). In this situation, it is apparent that the prosecution and" }, { "docid": "3041273", "title": "", "text": "district court would have sentenced him more favorably had it not presumed the guidelines were reasonable. Cf. United States v. Greene, 513 F.3d 904, 907-08 (8th Cir.2008) (remand for resentencing where district court explicitly stated it would have imposed a sentence outside the guidelines if it had the opportunity); United States v. Huff, 514 F.3d 818, 820-21 (8th Cir.2008) (same). Second, Vaughn contends that the district court procedurally erred by assuming its duty was to impose a reasonable sentence, instead of a sentence sufficient but not greater than necessary. See 18 U.S.C. § 3553(a). Although the district court did state that it was to impose a “reasonable sentence,” on the record as a whole, it is clear the court followed the proper procedure by first calculating the guidelines range, asking for departures, considering the § 3553(a) factors, and imposing a sentence. Vaughn has not met his burden of establishing a plain error. “Assuming that the district court’s sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall, 128 S.Ct. at 597. In contrast to procedural errors, a defendant does not forfeit an attack on the substantive reasonableness of a sentence by failing to object in the district court. See United States v. Wiley, 509 F.3d 474, 476-77 (8th Cir.2007). “A sentence within the Guidelines range is accorded a presumption of substantive reasonableness on appeal.” United States v. Robinson, 516 F.3d 716, 717 (8th Cir.2008). Vaughn believes that the sentence is substantively unreasonable because the district court improperly failed to consider his actual rehabilitation efforts or lack of recent criminal history, as part of its § 3553(a) analysis. Vaughn’s counsel specifically advanced these factors at the sentencing hearing. The district court rejected them, citing Vaughn’s significant violent criminal history. The court based its sentence on the need for deterrence, protection of the public, incapacitation, and punishment. See 18 U.S.C. § 3553(a)(2). The district court adequately considered Vaughn’s arguments for a downward departure, and did not abuse its discretion in imposing a sentence at the bottom of the guidelines" } ]

[ { "docid": "5951530", "title": "", "text": "a coincidence. Finally, his co-worker had witnessed a murder and Lopez said that the murderer could have wanted to eliminate a potential informant. Lopez’s assertions of potential persecution based on his remote membership in a union are not convincing, nor has he presented any specific evidence of such persecution. See Agustin v. INS, 700 F.2d 564, 565 (9th Cir.1983) (per curiam), Moghanian v. United States Dept. of Justice, 577 F.2d 141, 142 (9th Cir.1978). His status as a “young urban male” is not specific enough for political asylum. “There must be some special circumstances present before relief can be granted.” Martinez-Romero v. INS, 692 F.2d 595, 595-96 (9th Cir.1982). Nor has Lopez set forth any evidence indicating that he has any reason to believe he will in fact be persecuted for his refusal to take sides. See Sanchez, 707 F.2d at 1527. In addition, Lopez’s family has remained in El Salvador and has not been harassed. See Marroquin-Manriquez v. INS, 699 F.2d at 131. The tragic and widespread danger of violence affecting all Salvadorians is not persecution under 8 U.S.C. § 1253(h). Martinez-Romero, 692 F.2d at 595-96. In summary, we cannot say that the BIA abused its discretion, see INS v. Wang, 450 U.S. 139, 144-45, 101 S.Ct. 1027, 1031, 67 L.Ed.2d 123 (1981) (per curiam); Agustin, 700 F.2d 565-66, in concluding that Lopez did not establish a prima facie case. In view of our determination of that issue, we need not address the question whether Lopez explained his failure to raise his claim of asylum in timely fashion. We do note, however, that the record poses serious problems for Lopez in that regard as well. Administrative Deficiencies Lopez asserts that the INS improperly failed to give notice of his second deportation hearing to his retained counsel. Six days earlier, however, Lopez in writing informed the IJ that he had dismissed his attorney and was seeking new pro bono representation. There was no violation of 8 C.F.R. § 292.4(a), which governs substitution of new counsel. The regulation does not control Lopez’s decision to seek a new lawyer. Lopez also maintains" } ]

[ { "docid": "22792443", "title": "", "text": "or individual persecution or a threat of such persecution. Accordingly, if documentary evidence is not available, the applicant’s testimony will suffice if it is credible, persuasive, and refers to ‘specific facts that give rise to an inference that the applicant has been or has a good reason to fear that he or she will be singled out for persecution on one of the specified grounds’ listed in section 208(a). Id., quoting Carvajal-Munoz v. INS, 743 F.2d 562, 574 (7th Cir.1984). This court has held that: In its most generous form, the “well-founded fear” test requires the alien to establish that he has a subjective fear of returning and that this fear has enough of a basis in specific facts to be considered “well-founded” upon objective evaluation. The alien must offer “specific facts” detailing a “good reason” to fear persecution, or establishing an objectively reasonable “expectation of persecution.” Cruz-Lopez v. INS, 802 F.2d 1518, 1522 (4th Cir.1986), citing Cardoza-Fonseca, supra; Del Valle v. INS, 776 F.2d 1407 (9th Cir.1985); Diaz-Escobar v. INS, supra. These “specific facts,” referred to by the appellate courts must “illuminate the hardships” faced by the individual alien “rather than the difficulties of their entire nation.” Kaveh-Haghigy v. INS, 783 F.2d 1321, 1323 (9th Cir.1986). In short, “the evidence should be specific enough to indicate that the alien’s predicament is appreciably different from the dangers faced by the alien’s fellow citizens.” Vides-Vides v. INS, 783 F.2d 1463, 1469 (9th Cir.1986). Previous cases applying these standards make clear that Figeroa’s allegations do not provide the “specific and objective facts” necessary to “support an inference of risk of future persecution.” See Cardo-za-Fonseca, supra, at 1453. In Cruz-Lopez, supra, this court upheld the Board’s denial of asylum for a politically neutral El Salvadoran male who had received a threatening “recruitment” note from the guerillas. The court rejected the argument that the handwritten note constituted a “ ‘specific fact’ giving [petitioner] a ‘good reason’ to fear persecution” because such notes “are distributed widely throughout El Salvador and they are frequently nothing more than idle threats.” 802 F.2d at 1522. Because Cruz-Lopez offered" }, { "docid": "22792438", "title": "", "text": "observed that Figeroa had taken no “action” against Tellez for the attorney’s alleged incompetence. This lack of corroboration is not a sufficient reason for rejecting Figeroa’s ineffective assistance claim. Just as there is no evidence that petitioner’s new counsel attempted to contact Tellez for a “response” to the “charges”, there is also no evidence that the attorney would have respondedor that Tellez’s assertions regarding the asylum application would have been more credible than Figeroa’s. We note that any credibility finding made by a trier of fact in deportation proceedings must be supported by substantial evidence. Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir.1987); Saballo-Cortez v. INS, 761 F.2d 1259, 1262 (9th Cir.1985). “Although an immigration judge’s credibility findings are granted substantial deference by reviewing courts, a trier of fact who rejects a witness’s positive testimony because in his or her judgment it lacks credibility should ‘offer a specific, cogent reason for [his] disbelief.’ ” Turcios, supra, at 1399, quoting Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir.1986). In the instant case, the BIA offered no reason whatsoever for disbelieving Figeroa. They apparently found he lacked credibility for the simple reason that he was an illegal alien who wished to remain in this country. An individual’s status as an alien, legal or otherwise, however, does not entitle the Board to brand him a liar. Furthermore, it is not as though Figer-oa’s story itself is inherently incredible. Indeed, in view of the facts, attorney negligence or incompetence appears to be the only plausible explanation for Figeroa’s failure to timely file an asylum application. Under these circumstances, attorneys are not appointed to represent aliens as a matter of right. Figeroa had to actively seek the assistance of counsel, and he retained Tellez through a private agreement. It is doubtful that an individual such as Figeroa, who was anxious to remain in this country, would go to the trouble of retaining counsel or of formally requesting an opportunity to apply for asylum, or would voluntarily remain in detention because he believed his asylum application was being processed, and then simply fail to" }, { "docid": "12054183", "title": "", "text": "withheld for El Salvadoran who had been kidnapped and beaten and who was wanted as an informant by a right-wing group); Bolanos-Hernandez, 767 F.2d at 1280, 1284-86 (deportation withheld for former army officer and right-wing party member recruited by guerillas to infiltrate the government whose five friends and brother have been killed). Cruz-Lopez has offered no such evidence, however. He has, therefore, failed to establish a “clear probability,” as opposed to a possibility, of persecution required for the mandatory withholding of deportation under section 1253(h). III. Cruz-Lopez further argues that the BIA erred in refusing asylum under 8 U.S.C. § 1158(a). Section 1158(a) authorizes discretionary grants of asylum to aliens who qualify as “refugees” under 8 U.S.C. § 1101(a)(42)(A). A “refugee” is an alien who is unwilling or. unable to return to his native land “because of persecution or a well-founded fear of persecution on account of ... membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Given our disposition of the request to withhold deportation, Cruz-Lopez’s asylum argument cannot prevail unless the standard for granting asylum is more generous than the standard for withholding deportation. In Stevic, 467 U.S. at 425, 104 S.Ct. at 2498, the Supreme Court assumed, without deciding, that the standards do differ. In the wake of Stevie, several of our sister circuits have held that the “well-founded fear” requirement for asylum is more lenient than the “clear probability of persecution” standard for withholding deportation. See, e.g., Guevara Flores v. INS, 786 F.2d 1242, 1249 (5th Cir.1986); Bolanos-Hernandez v. INS, 767 F.2d 1277, 1283 (9th Cir.1985); Carvajal-Munoz v. INS, 743 F.2d 562, 573-75 (7th Cir.1984). The Third Circuit, however, has adhered to its preStevic view that the standards are “for all practical purposes” identical. Sotto v. United States INS, 748 F.2d 832, 836 (3d Cir.1984). The INS stands with the Third Circuit in insisting that the standards “as a practical matter ... converge.” Matter of Acosta, Int.Dec.No. 2986, at 5 (BIA March 1, 1985). Resolution of the case at bar does not require us to choose between competing characterizations of the relationship" }, { "docid": "22792446", "title": "", "text": "collaborating with the government. These allegations, however, are insufficient to demonstrate any specific threat directed against Figeroa in particular. Rather, they seem to reflect the dangers faced by virtually all young El Salvadoran males. Given this lack of specificity, and therefore the lack of objective evidence demonstrating that Figeroa is entitled to asylum, we must uphold the Board’s finding that Figeroa suffered no prejudice as a result of his ineffective assistance of counsel. For the reasons set forth herein the decision of the Board of Immigration Appeals is VACATED IN PART; AFFIRMED IN PART. . We note that since filing this appeal Figeroa has petitioned the BIA to reopen his case. In the petition to reopen, which is still pending, Figeroa alleges facts regarding his persecution by the military and the guerillas which are far more specific than those alleged in the record before us. We do not mean for our holding today to indicate that the facts set forth in the petition to reopen are also insufficient to estab-Iish a prima facie case. Our decision is simply not based on those factual allegations. See Brice v. United States Dept, of Justice, 806 F.2d 415 (2d Cir.1986) (It is the responsibility of the immigration judge and the BIA to assess an alien's objective evidence supporting his fear of persecution, and the Court of Appeals will not do so in the first instance). . Some time after the Board's denial of Figer-oa’s administrative appeal, his current counsel contacted Tellez by telephone and certified mail and requested an affidavit explaining his failure to file Figeroa’s asylum application. As of the date of this appeal, Tellez had not responded. . At the time of his initial hearing before the immigration law judge, Figeroa had just turned 17. . A number of similar cases have upheld the denial of asylum. See, e.g., Zepeda-Melendez v. INS, 741 F.2d 285, 290 (9th Cir.1984) (deportation upheld for El Salvadoran recruited because of strategic location of his family’s house); Chavez v. INS, 723 F.2d 1431, 1434 (9th Cir.1984) (deportation upheld for El Salvadoran threatened because he had been" }, { "docid": "18715816", "title": "", "text": "fear or a clear probability of persecution. Canjura-Flores v. INS, 784 F.2d 885, 888 (9th Cir.1985); Zepeda-Melendez v. INS, 741 F.2d 285, 289-90 (9th Cir.1984); Zavala-Bonilla v. INS, 730 F.2d 562, 564 (9th Cir.1984); Martinez-Romero v. INS, 692 F.2d 595, 595-96 (9th Cir.1982). In September 1982, although AvilesTorres had timely filed a notice of appeal, he was erroneously deported to El Salvador. Aviles-Torres states in his affidavit in support of the motion to reopen that, upon his return to El Salvador, Salvadoran security forces questioned him about the political groups to which he had belonged and whether he had filed for political asylum in the United States. He also claims that when he traveled to his home town he found that many of his friends, young men who had refused to join the government forces, had been banished, murdered, or simply had disappeared. Aviles-Torres alleges further that, since he had not enlisted, he automatically became considered a subversive in the government’s eyes and was subject to summary arrest. AvilesTorres asserts that he was not just one of many. He claims that any anonymity he enjoyed ended when a Salvadoran newspaper labeled him a “guerrilla” while he was still in El Salvador. The INS allowed Aviles-Torres to return to the United States pending appeal. When he returned, he moved to reopen his deportation hearing on the basis of this new evidence. The BIA affirmed the IJ’s ruling and denied the motion to reopen. It held that the petitioner had not established a prima facie showing of likelihood that he would be persecuted if he were forced to return to El Salvador. The BIA has discretion to determine under what circumstances a proceeding should be reopened, but the exercise of its discretion may not be arbitrary, capricious, or contrary to law. Mattis v. INS, 774 F.2d 965, 967 (9th Cir.1985); Patel v. INS, 741 F.2d 1134, 1136 (9th Cir.1984). Denial of petitioner’s motion to reopen therefore will be reviewed for an abuse of discretion. INS v. Rios-Pineda, — U.S. -, 105 S.Ct. 2098, 2101-02, 85 L.Ed.2d 452 (1985); Hemandez-Ortiz v. INS, 777" }, { "docid": "22792437", "title": "", "text": "should use “its own best judgment as to whether counsel was effective.” Mohsseni-Behbahani v. INS, 796 F.2d 249, 250 (9th Cir.1986). To prevail on a claim of ineffective assistance of counsel at a deportation proceeding, an alien must show not only ineffective representation, but also prejudice to him which occurred as a result of that ineffectiveness. See, e.g., Ramirez-Durazo v. INS, 794 F.2d 491, 499 (9th Cir.1986); Magallanes-Damian v. INS, 783 F.2d 931 (9th Cir.1986); Paul v. INS, 521 F.2d 194, 198 (5th Cir.1975). A. Ineffective Assistance The BIA found that Figeroa had not established ineffective assistance of counsel, primarily because they rejected his assertion that he was unaware of Tellez’s failure to file his asylum application despite Figeroa’s express request that he do so. The rejection of Figeroa’s assertions resulted from the lack of evidence corroborating it, and the Board’s finding that Figeroa himself lacked credibility. The BIA noted that the record was devoid of any efforts by Figeroa’s new counsel to contact Tellez and request a response to Figeroa’s “charges.” The Board further observed that Figeroa had taken no “action” against Tellez for the attorney’s alleged incompetence. This lack of corroboration is not a sufficient reason for rejecting Figeroa’s ineffective assistance claim. Just as there is no evidence that petitioner’s new counsel attempted to contact Tellez for a “response” to the “charges”, there is also no evidence that the attorney would have respondedor that Tellez’s assertions regarding the asylum application would have been more credible than Figeroa’s. We note that any credibility finding made by a trier of fact in deportation proceedings must be supported by substantial evidence. Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir.1987); Saballo-Cortez v. INS, 761 F.2d 1259, 1262 (9th Cir.1985). “Although an immigration judge’s credibility findings are granted substantial deference by reviewing courts, a trier of fact who rejects a witness’s positive testimony because in his or her judgment it lacks credibility should ‘offer a specific, cogent reason for [his] disbelief.’ ” Turcios, supra, at 1399, quoting Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir.1986). In the instant case, the BIA" }, { "docid": "22792432", "title": "", "text": "ERVIN, Chief Judge: Rafael Figeroa-Leyva petitioned this court for a review of a decision by the Board of Immigration Appeals, (“BIA”) which upheld an order requiring Figeroa’s deportation. The BIA found that Figeroa did not, as he claimed, suffer ineffective assistance of counsel and that, even if such ineffective assistance did occur, Figeroa suffered no prejudice because he could not demonstrate a prima facie showing of a “well-founded fear of persecution”. We vacate the BIA’s finding that Figeroa received effective assistance of counsel, but we uphold the finding that he suffered no prejudice as a result. For that reason we affirm the Board’s decision upholding the deportation order. I. Rafael Figeroa-Leyva is a twenty year old male citizen of El Salvador with a third grade education. He illegally entered the United States on November 3, 1986, but was apprehended the following day and charged with deportability for his illegal entry. Figeroa’s first attorney, Jose Tellez, represented him before an immigration judge on December 4, 1986. At that time Tellez and an attorney for the Immigration and Naturalization Service (“INS”) entered into a stipulation whereby Figeroa: (1) conceded his deportability; (2) declined to designate a country of deportation, and stated that he understood that such a declination would result in the designation of El Salvador as such country; (3) stated that he wished to have an opportunity to apply for asylum, withholding of deportation and voluntary departure; (4) stated that he understood he had been granted until January 20, 1987, to apply for asylum and withholding of deportation; and (5) stated that he understood that his failure to submit timely application for asylum or withholding of deportation would result in the immigration judge deciding his case on the basis of the record, and his being considered solely for voluntary departure. Although Figeroa explicitly told his attorney that he did not wish to return to El Salvador, and instructed him to file an asylum application on his behalf, Tellez failed to do so. As best anyone can tell, Tellez did not file the application after being told by Figeroa’s sister to have" }, { "docid": "22792444", "title": "", "text": "referred to by the appellate courts must “illuminate the hardships” faced by the individual alien “rather than the difficulties of their entire nation.” Kaveh-Haghigy v. INS, 783 F.2d 1321, 1323 (9th Cir.1986). In short, “the evidence should be specific enough to indicate that the alien’s predicament is appreciably different from the dangers faced by the alien’s fellow citizens.” Vides-Vides v. INS, 783 F.2d 1463, 1469 (9th Cir.1986). Previous cases applying these standards make clear that Figeroa’s allegations do not provide the “specific and objective facts” necessary to “support an inference of risk of future persecution.” See Cardo-za-Fonseca, supra, at 1453. In Cruz-Lopez, supra, this court upheld the Board’s denial of asylum for a politically neutral El Salvadoran male who had received a threatening “recruitment” note from the guerillas. The court rejected the argument that the handwritten note constituted a “ ‘specific fact’ giving [petitioner] a ‘good reason’ to fear persecution” because such notes “are distributed widely throughout El Salvador and they are frequently nothing more than idle threats.” 802 F.2d at 1522. Because Cruz-Lopez offered no other evidence, “in the form of repeated threats or personal or familial persecution, tending to indicate that the threat he received was serious or that the guerillas will persist in their recruiting effort,” he failed to establish an objectively well-founded fear. Id. The court observed that “Cruz-Lopez’s position is no different from that of many young, urban males, ‘invited’ to join gueril-la groups. Unfortunately, this country cannot serve as a haven for all of them.” Id. at 1521. In his administrative appeal Figeroa did not allege a threat against him personally as specific even as the note received by Cruz-Lopez. He simply alleged that he feared persecution because he wished to remain politically neutral, and that both the guerillas and the army would try to recruit him by force. If he refused to join either group, either might kill his family. Figer-oa also claimed that he lives in an area of heavy guerilla activity and that guerillas have burned at least twenty-five homes in his village, and have killed at least three men for" }, { "docid": "22792435", "title": "", "text": "that the guerillas had burned at least twenty five houses and killed at least three men in the village. Figeroa further alleged that he was in danger of being forcibly “recruited” by both the guerillas and the army, but that he could not join either group because, “for political and moral reasons” he refuses “to participate in the killing in El Salvador.” He claimed that if he returns to El Salvador and refuses to join either group, then either might kill his family. If he joins one of the groups, then the other might kill his family. The BIA dismissed Figeroa’s administrative appeal in January, 1988. The Board observed that Figeroa had admitted that Tellez had represented him, and therefore the immigration judge could rely on Tel-lez’s concession of deportability and his failure to file an asylum application. The BIA also rejected Figeroa’s ineffective assistance of counsel claim because he: produced no evidence to substantiate his contention ... There is no letter from the [petitioner]^ new counsel requesting Mr. Tellez to respond to the charge made against him, nor apparently has any complaint been filed against Mr. Tellez by the [petitioner]. In the absence of such evidence, we do not accept the [petitioner’s unsubstantiated statements. Furthermore, the Board held, Figeroa did not establish “any prejudice by his attorney’s alleged failure to file his asylum application.” This failure to establish prejudice in turn resulted from Figeroa’s failure “to establish a prima facie showing that a reasonable person in his circumstances would have a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Such a showing was necessary, the BIA said, for Figeroa to prove that he had a valid asylum claim. Figeroa now petitions this court to overturn the Board’s decision. II. Whether the alleged ineffective assistance of counsel rises to the level of a due process violation presents a mixed question of law and fact, and is therefore subject to de novo review. See United States v. McConney, 728 F.2d 1195, 1202-03 (9th Cir.1984) (en banc). The appeals court" }, { "docid": "22792434", "title": "", "text": "him accept voluntary departure instead. Tellez never discussed his actions with Figeroa, and it was not until Figeroa received his deportation order that he learned Tellez had not taken the requested action. After the immigration judge issued his deportation order on March 2, 1987, Figer-oa obtained new counsel, Leslie Johnson, and filed an administrative appeal with the BIA. On his appeal before the BIA, Figer-oa argued that his right to competent counsel had been violated by Tellez’s inadequate representation, and that he did not want to return to El Salvador because he feared persecution for political reasons. Specifically, Figeroa alleged that he was not present at the hearing before the immigration judge and that Sergio, an agent of Tellez, told him that the attorney would file an asylum application on his behalf. Neither Sergio nor Tellez, however, told Figer-oa that the application was due on a specific date, gave him any papers or explained in detail the procedures for requesting asylum. Figeroa also stated that he lived in an area of heavy guerilla activity, and that the guerillas had burned at least twenty five houses and killed at least three men in the village. Figeroa further alleged that he was in danger of being forcibly “recruited” by both the guerillas and the army, but that he could not join either group because, “for political and moral reasons” he refuses “to participate in the killing in El Salvador.” He claimed that if he returns to El Salvador and refuses to join either group, then either might kill his family. If he joins one of the groups, then the other might kill his family. The BIA dismissed Figeroa’s administrative appeal in January, 1988. The Board observed that Figeroa had admitted that Tellez had represented him, and therefore the immigration judge could rely on Tel-lez’s concession of deportability and his failure to file an asylum application. The BIA also rejected Figeroa’s ineffective assistance of counsel claim because he: produced no evidence to substantiate his contention ... There is no letter from the [petitioner]^ new counsel requesting Mr. Tellez to respond to the charge" }, { "docid": "22792447", "title": "", "text": "decision is simply not based on those factual allegations. See Brice v. United States Dept, of Justice, 806 F.2d 415 (2d Cir.1986) (It is the responsibility of the immigration judge and the BIA to assess an alien's objective evidence supporting his fear of persecution, and the Court of Appeals will not do so in the first instance). . Some time after the Board's denial of Figer-oa’s administrative appeal, his current counsel contacted Tellez by telephone and certified mail and requested an affidavit explaining his failure to file Figeroa’s asylum application. As of the date of this appeal, Tellez had not responded. . At the time of his initial hearing before the immigration law judge, Figeroa had just turned 17. . A number of similar cases have upheld the denial of asylum. See, e.g., Zepeda-Melendez v. INS, 741 F.2d 285, 290 (9th Cir.1984) (deportation upheld for El Salvadoran recruited because of strategic location of his family’s house); Chavez v. INS, 723 F.2d 1431, 1434 (9th Cir.1984) (deportation upheld for El Salvadoran threatened because he had been an armed security guard); Chatila v. INS, 770 F.2d 786, 790 (9th Cir.1985) (deportation upheld for Chilean because he did not testify that “specific threats had been made against his life or freedom” or that \"he had ever been persecuted\" because of his political activity); Diaz-Escobar v. INS, supra, at 1493 (deportation of Guatemalan who received threatening note on windshield of his car). Compare Sanchez-Trujillo v. INS, supra (deportation withheld for El Salvadoran student who had been imprisoned, tortured, forced to sign a blank confession, and placed on the government's list of suspicious persons); Del Valle v. INS, supra (deportation withheld for El Salvadoran who had been kidnapped and beaten, and who was wanted as an informant by a right wing group); Bolanos-Hernandez v. INS, 767 F.2d 1277, 1280 (9th Cir.1985) (deportation withheld for former army officer and right-wing party member recruited by guerillas to infiltrate the government, whose five friends and brother had been killed)." }, { "docid": "22792433", "title": "", "text": "and Naturalization Service (“INS”) entered into a stipulation whereby Figeroa: (1) conceded his deportability; (2) declined to designate a country of deportation, and stated that he understood that such a declination would result in the designation of El Salvador as such country; (3) stated that he wished to have an opportunity to apply for asylum, withholding of deportation and voluntary departure; (4) stated that he understood he had been granted until January 20, 1987, to apply for asylum and withholding of deportation; and (5) stated that he understood that his failure to submit timely application for asylum or withholding of deportation would result in the immigration judge deciding his case on the basis of the record, and his being considered solely for voluntary departure. Although Figeroa explicitly told his attorney that he did not wish to return to El Salvador, and instructed him to file an asylum application on his behalf, Tellez failed to do so. As best anyone can tell, Tellez did not file the application after being told by Figeroa’s sister to have him accept voluntary departure instead. Tellez never discussed his actions with Figeroa, and it was not until Figeroa received his deportation order that he learned Tellez had not taken the requested action. After the immigration judge issued his deportation order on March 2, 1987, Figer-oa obtained new counsel, Leslie Johnson, and filed an administrative appeal with the BIA. On his appeal before the BIA, Figer-oa argued that his right to competent counsel had been violated by Tellez’s inadequate representation, and that he did not want to return to El Salvador because he feared persecution for political reasons. Specifically, Figeroa alleged that he was not present at the hearing before the immigration judge and that Sergio, an agent of Tellez, told him that the attorney would file an asylum application on his behalf. Neither Sergio nor Tellez, however, told Figer-oa that the application was due on a specific date, gave him any papers or explained in detail the procedures for requesting asylum. Figeroa also stated that he lived in an area of heavy guerilla activity, and" }, { "docid": "11535844", "title": "", "text": "that the petitioner failed to qualify for political asylum because nothing in the record indicated that Jovel’s interrogation by policemen and threatening notes left on his car were politically motivated, or that they evidenced anything more than general conditions of unrest and violence in El Salvador. In Diaz-Escobar v. INS, 782 F.2d 1488 (9th Cir.1986) we held that a threatening letter alone, without a showing that it was from any political organization, was not sufficient to establish a well-founded fear of persecution. Asylum was likewise denied in Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir.1986) (Mere fact that one petitioner had on occasion been detained by security forces and the other had been attacked by several men in civilian clothing was insufficient to demonstrate finding of a well founded fear of persecution to establish eligibility for asylum). Not as direct on the point, but illustrative of the requirement that the feared treatment must conform to the predicates of the asylum laws are the decisions in Zepeda-Melendez v. INS, 741 F.2d 285 (9th Cir.1984) (contentions of El Salvadorian alien that, if deported, he would be persecuted both by El Salvadorian government and local guerillas because his mother owned a house in a strategic location and because he himself was a male of military age who had sworn allegiance to neither faction were insufficient to demonstrate a clear probability of persecution to require withholding of deportation), and Chavez v. INS, 723 F.2d 1431 (9th Cir.1984) (tragic and widespread danger of violence affecting all Salvadorians was not “persecution” sufficient to support showing required for political asylum). The majority finds it crucial that Zuniga was a sergeant in the Fuerza Armada. Zuniga had “his authority and his hold over [petitioner] because he was a member of this powerful military group.” Maj. op. at 1434. This is an unwarranted enlargement of Zuniga’s role and rank and the record here. He was a common, low-grade non-commissioned sergeant. Whatever his boasting and threats to denounce her as a subversive, it is clear that no appearance of official or military authority is shown to have supported his pretension" }, { "docid": "11535843", "title": "", "text": "native land not the “extreme hardship” required to establish statutory eligibility for suspension of deportation), so also have we had to distinguish between the “persecution” that may characterize personal relationships, and political persecution against which our immigration laws may provide respite, stay and asylum. That Zuniga’s conduct vis-a-vis Lazo-Majano went unchecked by authority proves little. The record does not show any complaints by her to his military superiors— and his lowly rank suggests that above him was a tower of supervisors — or to other authority. As we said in Zayas-Marini v. INS, 785 F.2d 801 (9th Cir.1986) even threats of death made against petitioner, although by two well-placed government officials (one of them Chief of Investigations in control of a paramilitary police unit, and the other Director General of the Paraguayan Water Treatment Program), may, and in that case did, reflect personal differences rather than political disputes, and thus may not qualify one for asylum based on fear of persecution for political reasons. In Rebollo-Jovel v. INS, 794 F.2d 441 (9th Cir.1986) we said that the petitioner failed to qualify for political asylum because nothing in the record indicated that Jovel’s interrogation by policemen and threatening notes left on his car were politically motivated, or that they evidenced anything more than general conditions of unrest and violence in El Salvador. In Diaz-Escobar v. INS, 782 F.2d 1488 (9th Cir.1986) we held that a threatening letter alone, without a showing that it was from any political organization, was not sufficient to establish a well-founded fear of persecution. Asylum was likewise denied in Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir.1986) (Mere fact that one petitioner had on occasion been detained by security forces and the other had been attacked by several men in civilian clothing was insufficient to demonstrate finding of a well founded fear of persecution to establish eligibility for asylum). Not as direct on the point, but illustrative of the requirement that the feared treatment must conform to the predicates of the asylum laws are the decisions in Zepeda-Melendez v. INS, 741 F.2d 285 (9th Cir.1984) (contentions of" }, { "docid": "18715815", "title": "", "text": "Salvadoran. Upon his arrest, he conceded deportability and stated his intent to apply for political asylum. All requests for political asylum are also considered applications for withholding of deportation pursuant to 8 U.S.C. § 1253(h). 8 C.F.R. § 208.3(b). In his original written application for asylum, Aviles-Torres described the widening gyre of persecution that he encountered in El Salvador. He described incidents of roadblocks, stops, searches and the dangers of arrest which created a coercive atmosphere. He also stated that his uncle was murdered in 1980 for his participation in a revolutionary group. The dangerous civil turmoil in El Salvador prompted Aviles-Torres’ flight, but he intended to return when civil order was established. The Immigration Judge (IJ) denied Aviles-Torres’ application for withholding of deportation and political asylum on the ground that there had been an insufficient showing that anyone had threatened his safety. The threat, in the IJ’s view, permeated Salvadoran society but was not directed at the petitioner in any particular way. Evidence of general disorder, without more, is insufficient to establish a well-founded fear or a clear probability of persecution. Canjura-Flores v. INS, 784 F.2d 885, 888 (9th Cir.1985); Zepeda-Melendez v. INS, 741 F.2d 285, 289-90 (9th Cir.1984); Zavala-Bonilla v. INS, 730 F.2d 562, 564 (9th Cir.1984); Martinez-Romero v. INS, 692 F.2d 595, 595-96 (9th Cir.1982). In September 1982, although AvilesTorres had timely filed a notice of appeal, he was erroneously deported to El Salvador. Aviles-Torres states in his affidavit in support of the motion to reopen that, upon his return to El Salvador, Salvadoran security forces questioned him about the political groups to which he had belonged and whether he had filed for political asylum in the United States. He also claims that when he traveled to his home town he found that many of his friends, young men who had refused to join the government forces, had been banished, murdered, or simply had disappeared. Aviles-Torres alleges further that, since he had not enlisted, he automatically became considered a subversive in the government’s eyes and was subject to summary arrest. AvilesTorres asserts that he was not just" }, { "docid": "22792436", "title": "", "text": "made against him, nor apparently has any complaint been filed against Mr. Tellez by the [petitioner]. In the absence of such evidence, we do not accept the [petitioner’s unsubstantiated statements. Furthermore, the Board held, Figeroa did not establish “any prejudice by his attorney’s alleged failure to file his asylum application.” This failure to establish prejudice in turn resulted from Figeroa’s failure “to establish a prima facie showing that a reasonable person in his circumstances would have a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Such a showing was necessary, the BIA said, for Figeroa to prove that he had a valid asylum claim. Figeroa now petitions this court to overturn the Board’s decision. II. Whether the alleged ineffective assistance of counsel rises to the level of a due process violation presents a mixed question of law and fact, and is therefore subject to de novo review. See United States v. McConney, 728 F.2d 1195, 1202-03 (9th Cir.1984) (en banc). The appeals court should use “its own best judgment as to whether counsel was effective.” Mohsseni-Behbahani v. INS, 796 F.2d 249, 250 (9th Cir.1986). To prevail on a claim of ineffective assistance of counsel at a deportation proceeding, an alien must show not only ineffective representation, but also prejudice to him which occurred as a result of that ineffectiveness. See, e.g., Ramirez-Durazo v. INS, 794 F.2d 491, 499 (9th Cir.1986); Magallanes-Damian v. INS, 783 F.2d 931 (9th Cir.1986); Paul v. INS, 521 F.2d 194, 198 (5th Cir.1975). A. Ineffective Assistance The BIA found that Figeroa had not established ineffective assistance of counsel, primarily because they rejected his assertion that he was unaware of Tellez’s failure to file his asylum application despite Figeroa’s express request that he do so. The rejection of Figeroa’s assertions resulted from the lack of evidence corroborating it, and the Board’s finding that Figeroa himself lacked credibility. The BIA noted that the record was devoid of any efforts by Figeroa’s new counsel to contact Tellez and request a response to Figeroa’s “charges.” The Board further" }, { "docid": "22302735", "title": "", "text": "(9th Cir.1978). We have also said that general evidence of widespread conditions of violence affecting all residents of a country is not, by itself, sufficient. Zepeda-Melendez, at 290; Martinez-Romero v. INS, 692 F.2d 595, 595-96 (9th Cir.1982). Most recently we held that an alien’s youth, his family’s ownership of a strategically located house, and his lack of commitment to either side in the Salvadoran struggle was insufficient to distinguish the danger he faced from that confronting other Salvadorans. Zepeda-Melendez, 741 F.2d at 290. Unlike the petitioner in Zepeda-Melendez, Bolanos did not present only general evidence of conditions that affect all Salvadorans equally or that merely raise a possibility that he, like almost all others, could be subject to the violent terror common in his homeland. Bolanos’s general evidence, newspaper articles that demonstrate the political and social turmoil in El Salvador, was coupled with testimony about a specific threat to his life made by the guerrillas. Neither the Immigration Judge nor the Board of Immigration Appeals questioned Bolanos’ credibility, or expressed any doubt about whether this threat had actually been made. But the Board concluded that the specific threat against Bolanos’ life was merely “representative of the general conditions in El Salvador,” while the Immigration Judge considered the specific, individualized evidence of the likelihood of persecution insufficient because not supported by “independent corroborative evidence.” We disagree with both these views. The Board’s conclusion that the threat against Bolanos’ life was insufficient simply because it was representative of the general level of violence in El Salvador constitutes a clear error of law. We are mystified by the Board’s ability to turn logic on its head. While we have frequently held that general evidence of violence is insufficient to trigger section 243(h)’s prohibition against deportation, not once have we considered a specific threat against a petitioner insufficient because it reflected a general level of violence. Even when the credibility of a petitioner’s evidence has been questioned, we have rejected the categorization of evidence of specific threats as “general.” See Zavala-Bonilla, 730 F.2d at 565; McMullen, 658 F.2d at 1319. It should be obvious" }, { "docid": "12054181", "title": "", "text": "Supreme Court has chosen to leave the “clear probability of persecution” test deliberately undefined. Id. at 429, 104 S.Ct. at 2501. This circuit has no relevant precedent, but our sister circuits generally agree that the illegal alien must offer spe cific facts “that this particular applicant will more likely than not be singled out for persecution.” Carvajal-Munoz v. INS, 743 F.2d 562, 573 (7th Cir.1984). Accord Youkhanna v. INS, 749 F.2d 360, 361 (6th Cir. 1984). Allegations based only on the general climate of violence in the country are insufficient. In fact, even a specific threat to petitioner may be insufficient, if the threat can be characterized as random, or one which the threatening group lacks the will or ability to carry out. Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285-86 (9th Cir.1985); see also Diaz-Escobar v. INS, 782 F.2d 1488, 1493 (9th Cir.1986) (threatening letter left on petitioner’s car windshield insufficient to establish “reasonable expectation of persecution” for relief under sections 1158(a) and 1253(h)). Cruz-Lopez’s evidence fails to establish the clear probability of persecution required for relief under section 1253(h). The type of note received by Cruz-Lopez is widespread in El Salvador, and Cruz-Lopez admits that many friends who received similar notes have remained unharmed. Cruz-Lopez’s position is no different from that of many young, urban males “invited” to join guerilla groups. Unfortunately, this country cannot serve as a haven for all of them. See Zededa-Melendez v. INS, 741 F.2d 285, 290 (9th Cir.1984) (deportation upheld for El Salvadoran recruited because of the strategic location of his family’s house); Chavez v. INS, 723 F.2d 1431, 1434 (9th Cir.1984) (deportation upheld for El Salvadoran threatened because he had been an armed security guard). See also Diaz-Escobar, 782 F.2d at 1493 (deportation of Guatemalan who received threatening note upheld). Evidence in addition to the one note, such as continuing threats, violence toward him, threats and violence toward his immediate family, or his special value to the guerillas, might establish a clear probability that the guerillas seriously intend to pursue Cruz-Lopez’s recruitment. Cf. Del Valle v. INS, 776 F.2d 1407 (9th Cir.1985) (deportation" }, { "docid": "12054182", "title": "", "text": "for relief under section 1253(h). The type of note received by Cruz-Lopez is widespread in El Salvador, and Cruz-Lopez admits that many friends who received similar notes have remained unharmed. Cruz-Lopez’s position is no different from that of many young, urban males “invited” to join guerilla groups. Unfortunately, this country cannot serve as a haven for all of them. See Zededa-Melendez v. INS, 741 F.2d 285, 290 (9th Cir.1984) (deportation upheld for El Salvadoran recruited because of the strategic location of his family’s house); Chavez v. INS, 723 F.2d 1431, 1434 (9th Cir.1984) (deportation upheld for El Salvadoran threatened because he had been an armed security guard). See also Diaz-Escobar, 782 F.2d at 1493 (deportation of Guatemalan who received threatening note upheld). Evidence in addition to the one note, such as continuing threats, violence toward him, threats and violence toward his immediate family, or his special value to the guerillas, might establish a clear probability that the guerillas seriously intend to pursue Cruz-Lopez’s recruitment. Cf. Del Valle v. INS, 776 F.2d 1407 (9th Cir.1985) (deportation withheld for El Salvadoran who had been kidnapped and beaten and who was wanted as an informant by a right-wing group); Bolanos-Hernandez, 767 F.2d at 1280, 1284-86 (deportation withheld for former army officer and right-wing party member recruited by guerillas to infiltrate the government whose five friends and brother have been killed). Cruz-Lopez has offered no such evidence, however. He has, therefore, failed to establish a “clear probability,” as opposed to a possibility, of persecution required for the mandatory withholding of deportation under section 1253(h). III. Cruz-Lopez further argues that the BIA erred in refusing asylum under 8 U.S.C. § 1158(a). Section 1158(a) authorizes discretionary grants of asylum to aliens who qualify as “refugees” under 8 U.S.C. § 1101(a)(42)(A). A “refugee” is an alien who is unwilling or. unable to return to his native land “because of persecution or a well-founded fear of persecution on account of ... membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Given our disposition of the request to withhold deportation, Cruz-Lopez’s asylum argument cannot prevail" }, { "docid": "11776131", "title": "", "text": "CANBY, Circuit Judge: Santos Carlos Martinez-Sanchez, a native and citizen of El Salvador, seeks review of a Board of Immigration Appeals (BIA) decision denying his application for political asylum and withholding of deportation pursuant to 8 U.S.C. §§ 1158(a) and 1253(h). He contends that the BIA applied the wrong standard of proof when it evaluated his asylum claim. He also argues that the BIA’s credibility determination, which led to denial of his request for withholding of deportation, was not supported by substantial evidence. We grant the petition for review. I. BACKGROUND Martinez-Sanchez is a thirty-year-old married man who fled El Salvador in late 1982 because of a claimed fear of leftist guerrillas in his home country. After spending several months in Mexico, he entered the United States on May 1, 1983, evading inspection at the Mexican border. He was apprehended, and deportation proceedings against him began shortly thereafter. Petitioner testified that he feared returning to El Salvador because of his membership in and collaboration with a right-wing paramilitary group known as Orden. He revealed that his father, a member of the Salvadoran National Police, was a supervisor of Orden and that his family’s ties to the Salvadoran government and Orden had led to threats against his life. At his deportation proceedings, petitioner conceded deportability and filed timely petitions for asylum and withholding of deportation. These requests were denied, and the BIA affirmed. II. STANDARD OF PROOF To qualify for withholding of deportation under 8 U.S.C. § 1253(h), an alien must demonstrate a “clear probability” that his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group, or political opinion. INS v. Stevic, 467 U.S. 407, 413, 104 S.Ct. 2489, 2492, 81 L.Ed.2d 321 (1984); Espinoza-Martinez v. INS, 754 F.2d 1536, 1539 (9th Cir.1985). “Clear probability” is a relatively high standard; the evidence must show that it is “more likely than not that the alien would be persecuted in the country to which he was being deported.” Stevic, 467 U.S. at 425, 104 S.Ct. at 2498. An alien who is unable to" } ]

[ { "docid": "22916678", "title": "", "text": "here made to the provisions of the Federal Constitution relating to the writ of habeas corpus bills of attainder, ex post facto laws, trial by jury for crimes, and generally to the fundamental guarantees of life, liberty and property embodied in that instrument. The answer to this suggestion is that those provisions have no relation to crimes committed without the jurisdiction of the United States.against the laws of a foreign country. In connection with the above proposition, we are reminded of the fact that the appellant is a citizen of the United States. But such citizenship does not give him an immunity to commit crime in other countries, nor entitle him to demand, of right, a trial in any other mode than that allowed to its own people by the country whose laws he has violated and from whose justice he has fled. When an American citizen commits a crime in a foreign country he cannot complain if required to submit to such modes of trial and to- such punishment as the laws of that country may prescribe for its own people, unless a different mode be provided for by treaty stipulations between that country and the United States. By the act in question the appellant cannot be extradited except upon the order of a judge of a court of the United States and then only upon evidence establishing probable cause to believe him guilty of the offence charged; and when tried in the country to which he is sent, he is secured by the same act “ a fair and impartial trial ” — not necessarily a trial according to the mode prescribed by this country for crimes committed against its laws, but a trial according to the modes established in the country where the crime was committed, provided such trial be had without 'discrimination against the accused because of his American citizenship. In the judgment of Congress these provisions were deemed adequate to. the ends of justice in cases of persons committing crimes in a foreign country or territory “ occupied by or under the control of the" } ]

[ { "docid": "19814750", "title": "", "text": "Court’s holding in Neely v. Henkel, [180 U.S. 109, 21 S.Ct. 302, 45 L.Ed. 448 (1901)]. An American citizen there contended that a federal statute authorizing extradition compliably with an applicable treaty to a foreign country or territory occupied by or under the control of the United States was “unconstitutional and void in that it does not secure to the accused, when surrendered to a foreign country for trial in its tribunals, all of the rights, privileges, and immunities that are guaranteed by the Constitution to persons charged with the commission in this country of crime against the United States.” Reference, in support of this position, was made not only to particular provisions of the Constitution but also “generally to the fundamental guaranties of life, liberty, and property embodied in that instrument.” The Court found the argument wanting: The answer to this suggestion is that those provisions have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country. In connection with the above proposition, we are reminded of the fact that the appellant is a citizen of the United States. But such citizenship does not give him an immunity to commit crime in other countries, nor entitle him to demand, of right, a trial in any other mode than that allowed to its own people by the country whose laws he has violated and from whose justice he has fled. When an American citizen commits a crime in a foreign country, he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people, unless a different mode be provided for by treaty stipulations between that country and the United States. As we view Neely, it governs the decision on the point under discussion. What we learn from Neely is that a surrender of an American citizen required by treaty for purposes of a foreign criminal proceeding is unimpaired by an absence in the foreign judicial system of safeguards in all respects equivalent to those constitutionally" }, { "docid": "19814746", "title": "", "text": "had a hearing before United States Magistrate J. Edward Harris in Tijuana, Mexico, on May 12, 1978. Prior to this hearing, Pfeifer met with appointed counsel and was given a booklet published by the United States Department of Justice that contained questions and answers regarding the Treaty’s operation. At the end of the hearing, Pfeifer, who was under oath, and Magistrate Harris signed a Consent Verification Form, stating, among other things, that Pfeifer consented to his transfer to the United States for the execution of the sentence imposed by the Mexican court, that the conviction could only be modified or set aside through appropriate proceedings brought in Mexico, that his sentence would be carried out according to the laws of the United States of America and that those laws were subject to change, and that the consent was wholly voluntary and not the result of promises, threats, coercion, or other improper inducements. Pfeifer was sent to the Metropolitan Correctional Center in San Diego. On June 2, 1978, he filed this petition for a writ of habeas corpus. Eleven days later he was transferred to the Federal Correctional Institute in Lompoc, California. At a subsequent parole hearing, he was given a presumptive parole date of September 22,1981. See Exh. C., Opposition and Response. In this action, Pfeifer contends (1) that his custody in the United States for crimes committed in Mexico is unconstitutional, (2) that his conviction was obtained by use of a coerced confession, (3) that he was denied assistance of counsel during trial, and (4) that he was denied his “right of appeal” from the conviction. II CONSTITUTIONAL CLAIM Pfeifer agrees that the transfer of prisoners to their native countries is a proper subject of the treaty power. See Traverse to the Return at 3-5. He does not contend that the Constitution operated extraterritorially to protect him. Rather, he argues that the custody of an American citizen for service of a sentence imposed in culmina tion of an unfair foreign trial is a governmental involvement that the Constitution does not tolerate. On the premise that his Mexican trial was" }, { "docid": "12038204", "title": "", "text": "position to help petitioners for a fee. Under such circumstances, we believe these petitioners have a right to test the basis for their continued confinement in a United States court. In reaching this conclusion, we by no means imply that each element of due process as known to American criminal law must be present in a foreign criminal proceeding before Congress may give a conviction rendered by a foreign tribunal binding effect. Indeed, we are keenly sensitive to the historical and cultural limitations of our own constitutional heritage, and respect the similarly indigenous underpinnings of the process accorded criminal defendants abroad. We simply hold that a petitioner incarcerated under federal authority pursuant to a foreign conviction cannot be denied all access to a United States court when he presents a persuasive showing that his conviction was obtained without the benefit of any process whatsoever. Cf. United States ex rel. Bloomfield, supra, 507 F.2d at 928. Having thus determined that petitioners possess a right to challenge the basis for their continued confinement under United States custody, we must proceed to consider the merits of their claim, unless there appears some further reason to withhold relief. Johnson v. Zerbst, 304 U.S. 458, 462-65, 58 S.Ct. 1019, 1022-23, 82 L.Ed. 1461 (1938). IV During the petitioners’ consent verification proceedings in Mexico, each was specifically asked whether he understood and agreed to abide by the Treaty provision granting Mexico exclusive jurisdiction over all proceedings seeking to challenge, modify, or set aside sentences imposed by its courts. Each indicated that he understood the provision and agreed to abide by the condition. Accordingly, we must decide whether the petitioners are now estopped from challenging their Mexican convictions in United States courts. In enacting the enabling legislation, Congress went to great lengths to ensure that a transferring prisoner would not only be informed of the Treaty’s provisions, but agree to abide by them as well. Section 4108(b)(1) of Title 18 expressly provides that the verifying officer “shall inquire of the offender whether he understands and agrees” that Mexico is given exclusive jurisdiction to hear challenges to his" }, { "docid": "14015975", "title": "", "text": "that our country enters into transfer treaties with foreign nations “to permit an American citizen convicted of a crime in a foreign country to serve his sentence in a prison at home where conditions are much better”). Nevertheless, “[a] sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly or impliedly consents to surrender its jurisdiction.” Wilson v. Girard, 354 U.S. 524, 529, 77 S.Ct. 1409, 1412, 1 L.Ed.2d 1544 (1957). Furthermore, provisions of our Constitution, including the writ of habeas corpus, “have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country”; an American citizen who commits a crime in a foreign country is subject to trial and punishment under the laws of that country. Neely v. Henkel, 180 U.S. 109, 122, 123, 21 S.Ct. 302, 307, 45 L.Ed. 448 (1901). “A sovereign does not lose its power to keep a convict in custody by turning the convict over to another sovereign for service of a sentence.... ‘[T]he question of jurisdiction and custody is one of comity between the two governments and not a personal right of the prisoner.’ ” Tavarez v. United States Attorney General, 668 F.2d 805, 809 (5th Cir.1982) (citation omitted) (alteration in original). Because foreign governments likely would not consent to the transfer of United States citizens serving sentences in their countries for crimes committed while abroad if the United States were to disregard the convictions and sentences of transferees in this country, jurisdictional exclusivity is a reasonable treaty term. See Rosado v. Civiletti, 621 F.2d 1179, 1200 (2d Cir.1980) (“In assessing the interacting interests of the United States and foreign nations, ‘we must move with the circumspection appropriate when [a court] is adjudicating issues inevitably entangled in the conduct of our international relations.’ ” (quoting Romero v. International Terminal Operating Co., 358 U.S. 354, 383, 79 S.Ct. 468, 486, 3 L.Ed.2d 368 (1959) (alteration in original))). A “sentence” under the Treaty means imprisonment for a criminal conviction. See Treaty, art. 1, § a, 35 U.S.T. at 2870." }, { "docid": "12038182", "title": "", "text": "claim of innocence and which further provided a means by which the judge could test whether the plea was being intelligently entered ... its validity cannot be seriously questioned.” Id. at 37-38, 91 S.Ct. at 167 (citation omitted). Since the evidence of guilt was, for practical purposes, conclusive, the choice between trial by jury and potential death on the one hand, or pleading guilty and certain imprisonment on the other, was not unjustifiably coercive. Similarly, if the instant petitioners’ consents to transfer are viewed in light of the alternatives legitimately available to them, it cannot be seriously doubted that their decisions were voluntarily and intelligently made. Petitioners, convicted by Mexican courts for crimes committed in Mexico, were confined to the legal process accorded criminal defendants in that country. While incarcerated there, they possessed no right of access to United States courts and, apart from the Treaty, no option but to serve their sentences in Mexico while seeking redress from its courts. Pursuant to the Treaty, however, petitioners were presented with the alternative of transfer to American custody and, consequently, the distinct advantage of receiving the protection of American laws governing parole and the conditions of their confinement. Their choice was thus between continued incarceration under the brutal regime that prevailed in Mexican prisons, or repatriation. In either event, they would retain their right to seek redress from the Mexican courts, but could not challenge their convictions or sentences in United States courts. Though it may well be, as Judge Daly concluded, that anyone in similar circumstances would choose to transfer, the same may also be said for the defendant in Alford. In view of the alternatives legitimately available to petitioners, we conclude that their consents to transfer were voluntarily and intelligently made. Ill Regardless of the validity of the petitioners’ consents to transfer, it is also claimed that the Treaty and enabling legislation deprive petitioners of their liberty without due process of law in violation of the Fifth Amendment. Though a transferring prisoner’s arrest, interrogation, trial, and ultimate conviction all occur in Mexico, at the hands of Mexican authorities, his" }, { "docid": "12038207", "title": "", "text": "suggested, Congress should employ the doctrine of estoppel and require transferring prisoners to agree not to challenge their Mexican convictions in United States courts. Implementation of Treaties for the Transfer of Offenders To or From Foreign Countries: Hearings Before the Subcommittee on Immigration, Citizenship, and International Law of the House Judiciary Committee, 95th Cong., 1st Sess. 269-70 (1977) (Oct. 14, 1977 Memorandum of Prof. Detlev Vagts, Harvard Law School). After witnesses at both House and Senate hearings emphasized the crucial importance of securing a binding, voluntary consent to transfer that would preclude returning prisoners from challenging their Mexican convictions in United States courts, the bill was amended in the Senate Judiciary Committee to require an express agreement by the prisoner to bring any attacks upon his conviction or sentence solely in the Mexican courts. See S.Rep. No. 95-435, 95th Cong., 1st Sess. 5, 9 (1977). As amended, the bill passed both the Senate, 123 Cong.Rec. S15,282 (daily ed. Sept. 21, 1977), and the House, 123 Cong.Rec. Hll,468 (daily ed. Oct. 25, 1977), with scant opposition. As we have mentioned, Mexico, the United States, and each offender requesting transfer must give their consent to the change in custody before a prisoner may be transferred. The consents contemplated by the Treaty entail much more than simple expressions of the desire to transfer, and the permission to do so. They also include reciprocal representations by each of the parties upon which the others rely in deciding to give their consent. For example, the United States promises Mexico that it will execute the prisoner’s Mexican conviction and provide biannual reports on the status of the offenders who have transferred to the United States. It also promises the prisoner that he will enjoy the benefit of parole in accordance with United States law. Mexico agrees to relinquish custody of an individual found to have committed a criminal offense within its jurisdiction, while promising to hear subsequent challenges to the sentences rendered by its courts. For his part, the transferring prisoner agrees to his change in custody, and further promises to abide by the terms of" }, { "docid": "12038194", "title": "", "text": "936, 94 L.Ed. 1255 (1950). While stressing the historic right of access to American courts enjoyed by citizens, id. at 769-70, the Court found no constitutional right to sue for habeas relief in United States courts where the petitioner was an alien enemy who never resided in the United States, was captured beyond American territory, and was tried, convicted, and imprisoned abroad for offenses committed outside the United States, id. at 777-78, 70 S.Ct. at 943. In contrast to Eisentrager, however, the petitioners at bar are United States citizens incarcerated within the territory of the United States. Another useful point of reference is found in cases where a foreign sovereign seeks to extradite an American citizen for trial abroad. Where extradition is sought pursuant to a valid treaty, the Supreme Court has held that the relator cannot prevent his extradition simply by alleging that the criminal process he will receive fails to accord with constitutional guaranties. See Neeley, supra, 180 U.S. 109, 21 S.Ct. 302, 45 L.Ed. 448. Since the Constitution bears no relation to crimes committed beyond the jurisdiction of the United States against the laws of a foreign sovereign, a citizen who “commits a crime in a foreign country cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people, unless a different mode be provided for by treaty stipulations.” Id. at 123, 21 S.Ct. at 307. See also Wilson v. Girard, 354 U.S. 524, 529, 77 S.Ct. 1409, 1412, 1 L.Ed.2d 1544 (1957) (“sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly . . . consents to surrender its jurisdiction”). Thus, where a relator challenges the fairness of foreign process, courts “are bound by the existence of an extradition treaty to assume that the trial will be fair.” Glucksman v. Henkel, 221 U.S. 508, 512, 31 S.Ct. 704, 705, 55 L.Ed. 830 (1911). In both Neeley and Girard, however, minimal safeguards to ensure a fair trial in the foreign tribunal were provided." }, { "docid": "7059665", "title": "", "text": "its nationals.” Plaster v. United States, 720 F.2d 340, 347 (4th Cir.1983). Petitioner has made no arguments that would lead us to a different conclusion. . The reasoning behind this position was explained in Neely v. Henkel, 180 U.S. 109, 21 S.Ct. 302, 45 L.Ed. 448 (1901). There, the Court wrote that the foreign proceedings are not to be tested by our own constitutional safeguards because those safeguards \"have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country.” Id. at 123, 21 S.Ct. at 307. Merely because the fugitive is a United States citizen \"does not give him an immunity to commit crime in other countries, nor entitle him to demand, of right, a trial in any other mode than that allowed to its own people by the country whose laws he had violated and from whose justice he has fled.” Id. But cf. Rosado v. Civiletti, 621 F.2d 1179, 1197-98 (2d Cir.), cert. denied, 449 U.S. 856, 101 S.Ct. 153, 66 L.Ed.2d 70 (1980) (petitioner incarcerated under federal authority pursuant to a foreign conviction cannot be denied all access to a United States court when he or she presents a persuasive showing that the conviction was obtained without the benefit of any due process whatsoever); Gallina v. Fraser, 278 F.2d 77, 79 (2d Cir.), cert. denied, 364 U.S. 851, 81 S.Ct. 97, 5 L.Ed.2d 74 (1960) (presumption of fairness routinely accorded to foreign state’s criminal process may be more closely scrutinized if relator demonstrates that the extradition would expose him or her to procedures or punishment \"antipathetic to a federal court's sense of decency”). . It is unclear under the Supplementary Agreement incorporating the waiver provisions of the NATO-SOFA Treaty whether West Germany, once it failed to recall its waiver, was thereafter permanently divested of the right to exercise its jurisdiction even though the United States failed to prosecute. The treaty does not explicitly provide for this situation, although most commentators, while recognizing several strong arguments to the contrary, would conclude that West Germany could not reassert jurisdiction under" }, { "docid": "17580726", "title": "", "text": "fugitive would likely receive once he was extradited was not listed by the Court as a factor that is properly considered on habeas review of a decision to grant extradition. Semmelman, 76 Cornell L.Rev. at 1211-12. The rule also has some roots in Neely v. Henkel, 180 U.S. 109, 21 S.Ct. 302, 45 L.Ed. 448 (1901). See Yapp v. Reno, 26 F.3d 1562, 1572 (11th Cir.1994) (Carnes, Circuit Judge, dissenting). There, the petitioner had filed a writ of habeas corpus challenging extradition to Cuba on the ground that the statute providing the basis for his extradition was unconstitutional, in that it did not secure for him all of the rights he would have under the Constitution if tried in this country. See Neely, 180 U.S. at 122, 21 S.Ct. 302. In rejecting that claim, the Court stated: When an American citizen commits a crime in a foreign country, he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people, unless a different mode be provided for by treaty stipulations between that country and the United States. Id. at 123, 21 S.Ct. 302. Lastly, Glucksman v. Henkel, 221 U.S. 508, 31 S.Ct. 704, 55 L.Ed. 830 (1911), provided the final piece of the puzzle. See United States v. Howard (In re Extradition of Howard), 996 F.2d 1320, 1329 (1st Cir.1993). There, in the context of analyzing the petitioner’s claim that there was insufficient evidence to warrant his extradition, the Court stated, [I]f there is presented, even in somewhat untechnical form according to our ideas, such reasonable ground to sup pose [the relator] guilty as to make it proper that he should be tried, good faith to the demanding government requires his surrender. We are bound by the existence of an extradition treaty to assume that the trial will be fair. Glucksman, 221 U.S. at 512, 31 S.Ct. 704 (citations omitted). We conclude that the rule of non-inquiry does not warrant a holding that the district court lacked jurisdiction to review the Secretary’s extradition decision" }, { "docid": "12038183", "title": "", "text": "American custody and, consequently, the distinct advantage of receiving the protection of American laws governing parole and the conditions of their confinement. Their choice was thus between continued incarceration under the brutal regime that prevailed in Mexican prisons, or repatriation. In either event, they would retain their right to seek redress from the Mexican courts, but could not challenge their convictions or sentences in United States courts. Though it may well be, as Judge Daly concluded, that anyone in similar circumstances would choose to transfer, the same may also be said for the defendant in Alford. In view of the alternatives legitimately available to petitioners, we conclude that their consents to transfer were voluntarily and intelligently made. Ill Regardless of the validity of the petitioners’ consents to transfer, it is also claimed that the Treaty and enabling legislation deprive petitioners of their liberty without due process of law in violation of the Fifth Amendment. Though a transferring prisoner’s arrest, interrogation, trial, and ultimate conviction all occur in Mexico, at the hands of Mexican authorities, his liberty is restricted by United States authorities once he is placed in American custody. Accordingly, we must determine whether the United States Government may imprison a citizen in execution of a criminal sentence imposed by a foreign tribunal acting within its jurisdiction and, at the same time, deny him access to a United States court to challenge the fundamental fairness of the criminal process that led to his conviction abroad. A In dictum too old to question, Chief Justice Marshall declared that “[t]he courts of no country, execute the penal laws of another.” The Antelope, 23 U.S. (10 Wheat.) 66, 123, 6 L.Ed. 408 (1825). Speaking in the context of a libel brought to recover 280 slaves found in the hold of a Venezuelan privateer captured in American waters, Marshall held that the penal statutes of no country could unilaterally alter the law of nations. “No principle of general law is more universally acknowledged,” Marshall stated, “than the perfect equality of nations. ... It results from this equality, that no one can rightfully impose a" }, { "docid": "12038173", "title": "", "text": "execution of their confinement by United States authorities.” U.S. Dep’t of Justice, Information Booklet for United States Citizens Incarcerated in Mexican Prisons 7 (1977). After the prisoners expressed an interest in transferring to United States custody, an attorney from the Federal Public Defender’s Office in Texas met with each individually and explained in detail the consequences of a transfer under the Treaty. On December 5, 1977, the men appeared sepa rately before a United States magistrate at the prison to verify their consents to transfer. The magistrate questioned each petitioner about his knowledge of the Treaty’s provisions, specifically asking each man whether he understood and agreed to abide by the condition requiring challenges to his conviction or sentence to be brought by proceedings instituted in Mexican courts. Each was also advised that if a United States court subsequently determined his consent to transfer had not been given in accordance with the Treaty or United States law, he could be returned to Mexico to serve the remainder of his sentence. In each case, once the magistrate satisfied himself that the applicant’s consent to transfer was given knowingly and voluntarily, without threat or coercion, he permitted the petitioner to sign a standard form of consent. II In appraising the voluntariness of the petitioners’ consents to transfer, Judge Daly relied primarily upon Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), in which the Supreme Court upheld the validity of a citizen’s consent to a police search of his automobile under the Fourth Amendment. In Schneckloth, the Court eschewed any “talismanic definition” of voluntariness, id. at 224, 93 S.Ct. at 2046, stressing instead that the issue presented a “question of fact to be determined from all the circumstances,” id. at 248-49, 93 S.Ct. at 2059. In the context of searches and seizures, the Court noted that a balance must be struck between our collective interest in effective law enforcement, and our constitutional insistence upon personal freedom from unwarranted governmental intrusions. Id. at 225,93 S.Ct. at 2046. Striking that balance in Schneckloth, the Court implicitly recognized that its rule would" }, { "docid": "12038211", "title": "", "text": "held in federal custody, to seek review of their Mexican convictions in a United States court, neither the United States nor Mexico would have consented to their transfers. If, however, they agreed to abide by the limitations of the Treaty, petitioners could escape the brutal conditions of Mexican confinement, acquire a hitherto unenjoyed right to parole, and have virtually the same opportunity to challenge their Mexican convictions in Mexico’s courts as they previously enjoyed. In addition, petitioners would gain access to United States courts for all claims unrelated to their convictions or sentences. Although petitioners’ decisions to accept the jurisdictional condition to their transfer thus appear to be intelligent choices among the available alternatives, Alford, supra, 400 U.S. at 38, 91 S.Ct. at 167, it is less certain that their decisions may be termed “voluntary” within the meaning of Jackson, supra, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138. Arguably, the choice between sacrifice of a right to seek judicial redress from a United States court once repatriated, and continued imprisonment in Mexico, “needlessly penalize[d]” the prisoners’ constitutional right to a federal forum once they were placed in United States custody. Id. at 583, 88 S.Ct. at 1217. We are satisfied, however, that the congressional decision to require offenders transferring to American custody to agree to abide by the jurisdictional provision was neither needless nor arbitrary. Moreover, we believe the conditional requirement that prisoners agree to challenge their convictions solely in the courts of the transferring nation legitimately serves two important interests that can be vindicated only by holding these prisoners to their agreements. In assessing the interacting interests of the United States and foreign nations, “we must move with the circumspection appropriate when [a court] is adjudicating issues inevitably entangled in the conduct of our international relations.” Romero v. International Terminal Operating Co., 358 U.S. 354, 383, 79 S.Ct. 468, 486, 3 L.Ed.2d 368 (1959). Since Mexico was unwilling to enter a treaty that provided for review of its criminal judgments by United States courts, American negotiators did not have a completely free hand in structuring the Treaty’s" }, { "docid": "18831289", "title": "", "text": "foreign country or territory occupied by or under the control of the United States, and said (pages 122-123): “II. It is contended that the act of June 6th, 1900, is unconstitutional and void in that it does not secure to the accused, when surrendered to a foreign country for trial in its tribunals, all of the rights, privileges, and immunities that are guaranteed by the Constitution to persons charged with the commission in this country of crime against the United States. Allusion is here made to the provisions of the Federal Constitution relating to the writ of habeas corpus, bills of attainder, ex post facto laws, trial by jury for crimes, and generally to the fundamental guaranties of life, liberty, and property embodied in that instrument. The answer to this suggestion is that those provisions have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country. “In connection with the above proposition, we are reminded of the fact that the appellant is a citizen of the United States. But such citizenship does not give him an immunity to commit crime in other countries, nor entitle him to demand, of right, a trial in any other mode than that allowed to its own people by the country whose laws he has violated and from whose justice he has fled. When an American citizen commits a crime in a foreign country, he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people, unless a different mode be provided for by treaty stipulations between that country and the United States. By the act in question the appellant cannot be extradited except upon the order of a judge of a court of the United States, and then only upon evidence establishing probable cause to believe him guilty of the offense charged; and when tried in the country to which he is sent, he is secured by the same act ‘a fair and impartial trial,’ — not necessarily a" }, { "docid": "17580725", "title": "", "text": "the requisition of the Mexican government.” Benson, 127 U.S. at 463, 8 S.Ct. 1240. The Court issued the second decision two years later, expanding on this proposition: A writ of habeas corpus in a case of extradition cannot perform the office of a writ of error. If the commissioner has jurisdiction of the subject-matter and of the person of the accused, and the offense charged is within the terms of a treaty of extradition, and the commissioner, in arriving at a decision to hold the accused has before him competent legal evidence on which to exercise his judgment as to whether the facts are sufficient to establish the criminality of the accused for the purposes of extradition, such decision of the commissioner cannot be reviewed by a circuit court or by this court, on habeas corpus, either originally or by appeal. Oteiza v. Jacobus, 136 U.S. 330, 334, 10 S.Ct. 1031, 34 L.Ed. 464 (1890). The rule of non-inquiry thus originally was born “by implication,” ie., by virtue of the fact that the treatment a fugitive would likely receive once he was extradited was not listed by the Court as a factor that is properly considered on habeas review of a decision to grant extradition. Semmelman, 76 Cornell L.Rev. at 1211-12. The rule also has some roots in Neely v. Henkel, 180 U.S. 109, 21 S.Ct. 302, 45 L.Ed. 448 (1901). See Yapp v. Reno, 26 F.3d 1562, 1572 (11th Cir.1994) (Carnes, Circuit Judge, dissenting). There, the petitioner had filed a writ of habeas corpus challenging extradition to Cuba on the ground that the statute providing the basis for his extradition was unconstitutional, in that it did not secure for him all of the rights he would have under the Constitution if tried in this country. See Neely, 180 U.S. at 122, 21 S.Ct. 302. In rejecting that claim, the Court stated: When an American citizen commits a crime in a foreign country, he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own" }, { "docid": "22776179", "title": "", "text": "J., dissenting in part) (“ ‘[Omar] has not yet had a trial or even an investigative hearing in the CCCI due to the district court’s unprecedented injunction’ ” (citing Opposition to Petitioner’s Emergency Motion for Injunctive Relief in Munaf v. Harvey, No. 06-5324 (CADC, Oct. 25, 2006), pp. 18-19)). Given these facts, our cases make clear that Iraq has a sovereign right to prosecute Omar and Munaf for crimes committed on its soil. As Chief Justice Marshall explained nearly two centuries ago, “[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute.” Schooner Exchange v. McFaddon, 7 Cranch 116,136 (1812). See Wilson, supra, at 529 (“A sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly or impliedly consents to surrender its jurisdiction”); Reid v. Covert, 354 U. S. 1, 15, n. 29 (1957) (opinion of Black, J.) (“[A] foreign nation has plenary criminal jurisdiction . . . over all Americans . . . who commit offenses against its laws within its territory”); Kinsella v. Krueger, 351 U. S. 470, 479 (1956) (nations have a “sovereign right to try and punish [American citizens] for offenses committed within their borders,” unless they “have relinquished [their] jurisdiction” to do so). This is true with respect to American citizens who travel abroad and commit crimes in another nation whether or not the pertinent criminal process comes with all the rights guaranteed by our Constitution. “When an American citizen commits a crime in a foreign country he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people.” Neely v. Henkel, 180 U. S. 109, 123 (1901). The habeas petitioners nonetheless argue that the Due Process Clause includes a “[f]reedom from unlawful transfer” that is “protected wherever the government seizes a citizen.” Brief for Habeas Petitioners 48. We disagree. Not only have we long recognized the principle that a nation state reigns sovereign within its own territory, we have twice applied that principle to reject claims" }, { "docid": "12038153", "title": "", "text": "of the federal courts to hear due process claims raised, as they are here, by citizens held prisoner within the territorial jurisdiction of the United States. Nevertheless, we also recognize the laudable efforts of the executive and legislative branches, by both treaty and statute, to ameliorate, to their utmost power, the immense suffering of United States citizens held in Mexican jails. Indeed, because the statutory procedures governing transfers of these prisoners to United States custody are carefully structured to ensure that each of them voluntarily and intelligently agreed to forego his right to challenge the validity of his Mexican conviction, and because we must not ignore the interests of those citizens still imprisoned abroad, we hold that the present petitioners are estopped from receiving the relief they now seek. I In 1978, Efran Caban, Raymond Velez, Pedro Rosado, and Felix Melendez filed petitions in the District of Connecticut seeking release from federal incarceration in the Danbury Correctional Facility. The petitioners, all United States citizens, had been arrested in Mexico in November 1975 for narcotics offenses. They were subsequently convicted and sentenced to nine years’ imprisonment by the Mexican courts. In December 1977, the petitioners were transferred to United States custody pursuant to a treaty between the United States and Mexico providing for the execution of penal sentences imposed by the courts of one nation in the prisons of the other. Under the terms of the treaty, each transferring prisoner is required to consent to his transfer, and is permitted to contest the legality of any change of custody in the courts of the receiving nation. Thus, the petitioners in this case argued that their consents to transfer had been unlawfully coerced and that their continued detention by United States authorities based upon the convictions in Mexico violated their right to due process of law guaranteed by the Fifth Amendment. In support of federal jurisdiction, petitioners relied upon 18 U.S.C. § 3244, as well as various sections of Title 28, including 28 U.S.C. § 2241. To the extent that 18 U.S.C. § 3244(1) purports to reserve to Mexican courts exclusive jurisdiction" }, { "docid": "6016447", "title": "", "text": "We need not pause to reflect on the difficulties — practical or otherwise — of such an undertaking, for appellants’ contention that the Constitution has the effect asserted is doomed, we think, by the Supreme Court’s holding in Neely v. Henkel An American citizen there contended that a federal statute authorizing extradition eompli-ably with an applicable treaty to a foreign country or territory occupied by or under the control of the United States was “unconstitutional and void in that it does not secure to the accused, when surrendered to a foreign country for trial in its tribunals, all of the rights, privileges, and immunities that are guaranteed by the Constitution to persons charged with the commission in this country of crime against the United States.” Reference, in support of this position, was made not only to particular provisions of the Constitution but also “generally to the fundamental guaranties of life, liberty, and property embodied in that instrument.” The Court found the argument wanting: The answer to this suggestion is that those provisions have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country. In connection with the above proposition, we are reminded of the fact that the appellant is a citizen of the United States. But such citizenship does not give him an immunity to commit crime in other countries, nor entitle him to demand, of right, a trial in any other mode than that allowed to its own people by the country whose laws he has violated and from whose justice he has fled. When an American. citizen commits a crime in a foreign country, he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people, unless a different mode be provided for by treaty stipulations between that country and the United States. As we view Neely, it governs the decision on the point under discussion. What we learn from Neely is that a surrender of an American citizen required by treaty for" }, { "docid": "12038189", "title": "", "text": "convictions in Mexico, and the Treaty provisions, supplemented by the implementing legislation, which provide for United States imprisonment of American citizens convicted in Mexico. Nowhere does the Treaty or enabling legislation expressly grant petitioners a right to challenge their continued confinement in the United States under sentences imposed by Mexican courts. Indeed, 18 U.S.C. § 3244(1) purports to re serve to the courts of Mexico exclusive jurisdiction over proceedings to challenge, modify, or set aside petitioners’ convictions or sentences. Accordingly, we must determine whether Congress can provide for the deprivation of a citizen’s liberty through incarceration, while withholding all right of access to United States courts to test the basis for his confinement. It is an unassailable tenet of our constitutional system that the Government’s power to punish citizens may be exercised only in accordance with the due process of law prescribed by the Bill of Rights. See Ex parte Milligan, 71 U.S. (4 Wall.) 2, 119, 18 L.Ed. 281 (1866); Reid, supra, 354 U.S. at 5-6, 77 S.Ct. at 1224-1225. Whether the constitutional guaranty of due process further requires that any imposition of punishment carry with it a right of access to a United States court to test the basis for the sanctions imposed is a question never fully resolved. In the case at bar, the Government seeks to deprive the petitioners of their liberty in recognition of a conviction returned by a court beyond the jurisdiction of the United States. Though our research has disclosed no case directly in point, the nature and extent of process to be accorded those committing crimes abroad has been considered in a variety of related contexts. In In re Ross, 140 U.S. 453, 11 S.Ct. 897, 35 L.Ed. 581 (1891), the Supreme Court denied habeas relief to a seaman imprisoned in the United States following his conviction for murder by an American consular court sitting in Japan. Under a treaty with that country, the United States was given jurisdiction over criminal offenses committed by Americans in Japan. The implementing legislation enacted by Congress vested jurisdiction to try all such offenses in consular" }, { "docid": "19814751", "title": "", "text": "reminded of the fact that the appellant is a citizen of the United States. But such citizenship does not give him an immunity to commit crime in other countries, nor entitle him to demand, of right, a trial in any other mode than that allowed to its own people by the country whose laws he has violated and from whose justice he has fled. When an American citizen commits a crime in a foreign country, he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people, unless a different mode be provided for by treaty stipulations between that country and the United States. As we view Neely, it governs the decision on the point under discussion. What we learn from Neely is that a surrender of an American citizen required by treaty for purposes of a foreign criminal proceeding is unimpaired by an absence in the foreign judicial system of safeguards in all respects equivalent to those constitutionally enjoined upon American trials. We do not believe that that teaching has been eroded by time, nor that the slight factual differences between the pretrial extradition there and the postconviction surrender here removes the instant situation from Neely’s ambit. We conclude, then, that the Constitution erects no barrier to appellants’ surrender to the Federal Republic in conformity with NATO SOFA and the Supplementary Agreement. 148 U.S.App.D.C. at 194-195, 459 F.2d at 1217-19 (footnotes omitted). See also Wilson v. Girard, 354 U.S. 524, 77 S.Ct. 1409, 1 L.Ed.2d 1544 (1957) (upholding delivery of American to Japan for trial not complying with American Constitution). America is not vicariously liable for the acts of another nation. Consequently, as in Holmes, the fifth amendment permits the United States to enforce the sentences meted out by foreign courts, even if those sentences were “unconstitutionally” procured. American custody of convicts originally tried and imprisoned in Mexico, as in Pfeifer’s ease, is simply another form of enforcing a foreign sentence. Therefore, the Treaty does not run afoul of the Constitution, simply because" }, { "docid": "20686455", "title": "", "text": "in foreign territory unless in respect of our own citizens.”). The Court has also refused to apply our notions of due process to foreign court proceedings against American citizens who have committed foreign crimes outside the United States. See, e.g., Neely v. Henkel, 180 U.S. 109, 123, 21 S.Ct. 302, 307, 45 L.Ed. 448 (1901) (“When an American citizen commits a crime in a foreign country, he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people.”). By necessary implication, the United States Constitution places no restraints at all on a foreign government’s treatment of its own citizens who have allegedly committed foreign crimes abroad. See Underhill v. Hernandez, 168 U.S. 250, 252, 18 S.Ct. 83, 84, 42 L.Ed. 456 (1897); see, e.g., United States ex rel. Steinvorth v. Watkins, 159 F.2d 50, 51 (2nd Cir.1947) (holding that a United States court will not review the Costa Rican government’s cancellation of appellant’s Costa Rican citizenship). As Justice Kennedy wrote in United States v. Verdugo-Urquidez, “[t]he Constitution does not create ... any juridical relation between our country and some undefined, limitless class of noncitizens who are beyond our territory.” Verdugo-Urquidez, 494 U.S. at 275, 110 S.Ct. at 1066 (Kennedy, J., concurring). Therefore, a foreign court cannot violate the Fifth Amendment to the United States Constitution when it inflicts criminal penalties on a foreign national based on compelled, testimonial self-incrimination. C. Applying these principles to the current appeal, we conclude that a proceeding becomes a “criminal case” only when a witness faces conviction on the basis of his testimony in a jurisdiction subject to the Fifth Amendment of the United States Constitution. Gecas faces no possibility of a criminal conviction in the United States. He only faces trial and conviction in Israel, Germany, or Lithuania. The United States Constitution does not prohibit foreign countries such as these from trying and convicting their own citizens on the basis of self-incrrmi-nation. Therefore, Gecas does not face the kind of conviction proscribed by the Self-Incrhnination Clause, and his" } ]

[ { "docid": "1193288", "title": "", "text": "13 plan. 11 U.S.C. § 109(e); Fisk, supra; See also Matter of Monaco, 36 B.R. 882 (Bankr.M.D.Fla.1983). For this reason, confirmation of the debtor’s plan must be denied. III. Unsecured Debt Limitations On January 15,1988, the debtor amended his debt schedules to include a debt of $100,000.00 to a Wallace Gallier. That amendment indicates that the basis for the debt is a loan from Gallier to the High Grade partnership, and which is to be paid by the partnership. The amendment classifies the debt as contingent. John Deere objects to confirmation on the basis that as the debtor’s amended unsecured debt is $100,000.00, he does not qualify for relief under 11 U.S.C. § 109(e), which states: (e) Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, secured debts of less than $350,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts that aggregate less than $100,000 and noncontingent, liquidated, secured debts of less than $350,000 may be a debtor under chapter 13 of this title. The concern of the Court is with the total amount of unsecured debt at the time of filing. Comprehensive Accounting Corp. v. Pearson (Matter of Pearson), 773 F.2d 751 (6th Cir.1985). The court, in Pearson at page 756, adopted the view: [T]hat a court should rely primarily upon the debtor’s schedules checking only to see if the schedules were made in good faith on the theory that section 109(e) considers debts as they exist at the time of filing, not after a hearing. In accordance with the Sixth Circuit’s conclusion in Pearson, the Court holds that the debtor’s petition, at the time it was filed, did not exceed the statutory limit imposed for unsecured debt under 11 U.S. C. § 109(e). IV. Good Faith John Deere argues that the debtor’s Chapter 13 plan is not proposed in good faith as required under 11 U.S.C. § 1325(a)(3). In discussing the concept of good" } ]

[ { "docid": "7807262", "title": "", "text": "makes crystal clear, the superior court justice’s prepetition adjudication and direction for entry of a money judgment left nothing to the- discretion or judgment of the superior court clerk. See, e.g., York Mut. Ins. Co. of Maine v. Mooers, 415 A.2d 564, 566 (Me. 1980) (per curiam). Therefore, even though the oral direction for entry of judgment was not reduced to writing until the next day, neither that clerical act nor the mere ministerial notation of the judgment on the docket contravened the automatic stay. III CONCLUSION As the mere docketing of the Elliott judgment did not violate the automatic stay, see In re Soares, 107 F.3d at 973-74, and it is conceded that an unsecured debt becomes “liquidated” in amount once reduced to judgment, see supra note 3, the $276,606.87 unsecured, liquidated debt owed Elliott on the date of the filing of the chapter 13 petition rendered Papatones ineligible for chapter 13 relief as provided in Bankruptcy Code § 109(e). Accordingly, the judgment of the Bankruptcy Appellate Panel for the First Circuit is affirmed. Appellant shall hear all costs. SO ORDERED. .‘ Section 109(e) states: Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $250,000 and noncontingent, liquidated, secured debts of less than $750,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts that aggregate less than $250,000 and noncontingent, liquidated, secured debts of less than $750,000 may be a debtor under chapter 13 of this title. Id. (emphasis added). . Section 362(a)(1) states: 11 U.S.C. § 362. Automatic stay (a) ..a petition filed under section 301 ... of this title[ ] ... operates as a stay, applicable to all entities, of— (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this" }, { "docid": "7117706", "title": "", "text": "less than $750,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the petition noncontingent, liquidated, unsecured debts that aggregate less than $250,000 and noncontingent, liquidated, secured debts of less than $750,-000 may be a debtor under chapter 13 of this title. 11 U.S.C. § 109(e) (1997) . The language of the statute clearly states that the amount of the debt is determined as of “the date of the filing of the petition.” 11 U.S.C. § 109(e) (emphasis added). The courts that have considered this issue have narrowly construed the quoted portion of § 109(e). They hold that a bankruptcy court cannot look to post-petition events to determine the amount of the debt. See In re Robertson, 84 B.R. 109 (Bankr.S.D.Ohio 1988) (holding that debt must be proved to exceed the statutory limit at the time of filing) (citing In the Matter of Pearson, 773 F.2d 751 (6th Cir.1985) (holding that court will only look at petition to determine the amount of the debts owed)); In re Morton, 43 B.R. 215, 220 (Bankr.E.D.N.Y.1984). Because we cannot consider the final judgment entered in the state court, after the petition was filed, in deciding the amount of the debt owed by Slack, we must deny Wilshire’s motion for judicial notice as irrelevant to our task. Under § 109(e), a debtor is ineligible for Chapter 13 relief if his or her noncontin-gent, liquidated, unsecured debts exceed the statutory limit of $250,000. See 11 U.S.C. § 109(e) (1997). This circuit has held that a debt is liquidated for the purposes of calculating eligibility for relief under § 109(e) if the amount of the debt is readily determinable. In In re Fostvedt, we stated that the question of whether a debt is liquidated “turns on whether it is subject to ‘ready determination and precision in computation of the amount due.’ ” 823 F.2d at 306 (quoting Sylvester v. Dow Jones and Co., Inc. (In re Sylvester), 19 B.R. 671, 673 (9th Cir. BAP 1982)). In In re Wenberg, we affirmed for" }, { "docid": "13955373", "title": "", "text": "dated October 14, 1993. This claim is listed by Debtors as unliquidated. D. The bankruptcy petition and the plan. Debtors filed this Chapter 13 petition on March 13, 1995, the day prior to the continued state court summary judgment hearing on the Russoli claims. Debtors list six claims totalling $1,660.82 as fixed, liquidated and undisputed. All remaining claims, totalling $1,042,764.75, are listed as contingent or unliquidated, or both. This figure does not include the Russoli claims, which are listed as unknown. Debtors’ plan is a thirty-six month plan with monthly payments of $550.00. III. DISCUSSION. A. The debt limits of Section 109. Section 109(e) provides: (e) Only an individual with regular income that owes, on the date of the filing of the petition, noneontingent, liquidated, unsecured debts of less than $250,000 and non-contingent, liquidated, secured debts of less than $750,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noneontingent, liquidated, unsecured debts that aggregate less than $250,000 and non-contingent, liquidated, secured debts of less than $750,000 may be a debtor under chapter 13 of this title. (emphasis added). Thus the question in this case is whether the Debtors owed on the date of the filing of their petition, noncontin-gent, liquidated, unsecured debts of less than $250,000. The Bankruptcy Appellate Panel for the Ninth Circuit has held that the question of whether a debt is contingent or liquidated for Chapter 13 purposes is a question of law, but the amount of the debt is a question of fact. In re Nicholes, 184 B.R. 82 (9th Cir. BAP 1995). The BAP has also explained: A debt is noneontingent if all events giving rise to liability occurred prior to the filing of the bankruptcy petition.... The fact that [a claim is] not reduced to judgment does not render [it] contingent.... [W]hether a debt is liquidated or not for purposes of 11 U.S.C. § 109(e) does not depend strictly on whether the claim sounds in tort or in contract, but whether it is capable" }, { "docid": "7117705", "title": "", "text": "is un-liquidated.” Appellant’s Opening Brief at 6. II This court reviews de novo a district court’s decision to affirm a bankruptcy court’s order. See Fostvedt v. Dow (In re Fostvedt), 823 F.2d 305, 306 (9th Cir.1987). This court reviews the bankruptcy court’s decisions of law de novo and its findings of fact under the clearly erroneous standard. See id. Whether a debt is liquidated involves the interpretation of the Bankruptcy Code and is reviewed de novo. See Federal Deposit Ins. Corp. v. Wenberg (In re Wenberg), 94 B.R. 631, 633 (9th Cir. BAP 1988), aff'd, 902 F.2d 768 (9th Cir.1990). The amount of the debt is reviewed for clear error. See id. An individual qualifies for Chapter 13 relief only if his or her debts do not exceed a certain sum at the time of filing. At the time Slack filed his petition, section 109(e) stated: Only an individual with regular income that owes, on the date of filing the petition, noncontingent, liquidated, unsecured debts of less than $250,000 and noncontingent, liquidated, secured debts of less than $750,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the petition noncontingent, liquidated, unsecured debts that aggregate less than $250,000 and noncontingent, liquidated, secured debts of less than $750,-000 may be a debtor under chapter 13 of this title. 11 U.S.C. § 109(e) (1997) . The language of the statute clearly states that the amount of the debt is determined as of “the date of the filing of the petition.” 11 U.S.C. § 109(e) (emphasis added). The courts that have considered this issue have narrowly construed the quoted portion of § 109(e). They hold that a bankruptcy court cannot look to post-petition events to determine the amount of the debt. See In re Robertson, 84 B.R. 109 (Bankr.S.D.Ohio 1988) (holding that debt must be proved to exceed the statutory limit at the time of filing) (citing In the Matter of Pearson, 773 F.2d 751 (6th Cir.1985) (holding that court will only look at petition to determine the amount" }, { "docid": "3741644", "title": "", "text": "uncontested proofs of claim exceeding $400,000, and considered the statements in the plans that indicated unsecured claims would exceed $300,000. The court concluded that the debtor’s noncontingent, liquidated, unsecured debts as of the time of the filing of the petition exceeded the statutory limit of $250,000 and ordered the case converted to chapter 7. This appeal ensued. On debtors’ unopposed motion, the conversion order has been stayed pending this appeal, provided debtors comply with certain payment conditions. II. ISSUE Whether the bankruptcy court correctly computed the debtors’ unsecured debts in concluding that the debtors were ineligible for Chapter 13 relief pursuant to § 109(e). III. STANDARD OF REVIEW Questions of statutory interpretation, including the question of whether a debt is liquidated or contingent is a matter of law reviewed de novo. In re Nicholes, 184 B.R. 82 (9th Cir. BAP 1995). Whether the arithmetic sum of such debts exceeds $250,000 is a question of fact that is reviewed for clear error. Id. IV. DISCUSSION Section 109(e) sets out the requirements for Chapter 13 eligibility. At the time this case was filed it provided: Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $250,000 and noncontingent, liquidated, secured debts of less than $750,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts that aggregate less than $250,000 and noncontingent, liquidated, secured debts of less than $750,000 may be a debtor under chapter 13 of this title. A. Evidence Used in Making § 109(e) Determination: 1. Proofs of Claim First, debtors maintain that it was error to consider the filed proofs of unsecured claim that totaled more than $400,000, which claims were deemed allowed because no objection had been filed. They argue that a § 109(e) eligibility inquiry should be restricted to a review of the debtors’ schedules filed in good faith. We have held that a bankruptcy court may look past the schedules" }, { "docid": "18540640", "title": "", "text": "— $38,563.15; Mohre — $8,570.08; Priest — $39,419.37; Simon — $8,570.08; Swindlehurst — $8,570.08; and Westcot — $18,852.96. . Section 109(e) provides in full: Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $250,000 and noncontingent, liquidated, secured debts of less than $750,000, or an individual with regular income and such individual's spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts that aggregate less than $250,000 and noncontingent, liquidated, secured debts of less than $750,000 may be a debtor under chapter 13 of this title. 11 U.S.C. § 109(e). . The Mannor opinion does not discuss any debts other than the $41,383.30 judgment owed to Great Lakes. Presumably, the debtor also owed other noncontingent, liquidated unsecured debts which, when added to the amount owed Great Lakes, exceeded the then applicable limit of $100,000 under § 109(e). For cases filed after October 22, 1994, the limit on unsecured debt was raised from $100,000 to $250,000. See Bankruptcy Reform Act of 1994, Pub.L. No. 103-394 §§ 108 and 702, 108 Stat. 4106 (1994). . See, supra, note 10. . The court also set forth several alternative grounds for denying confirmation including the finding that the plan had not been filed in “good faith” because the debtor would have profited from his fraudulent wrongdoing and that one of the primary purposes of filing the chapter 13 was to secure a discharge of debts that were nondis-chargeable under a chapter 7 liquidation. In re Troyer, 24 B.R. at 731. . In a footnote to his supplemental brief, the Debtor's counsel states, “Redbum does not contest that the investors’ claims in this case are noncontingent.” See Supplemental Memorandum of Law Supporting Confirmation of Debt- or’s Plan, p. 3, n. 2. . Section § 524 states in pertinent part: (a) A discharge under [the Bankruptcy Code] (1) voids any judgment at any time obtained, to the extent that such judgment is a determination of the personal liability" }, { "docid": "17976560", "title": "", "text": "amended statement did not cause the Pearsons to then become ineligible. The district court affirmed holding that the Pearsons met the eligibility standard at the time the bankruptcy petition was filed, and that events subsequent to the filing of the petition cannot disqualify the Pearsons. ISSUE The issue in this case is whether the Pearsons met the Chapter 13 eligibility requirement of section 109(e) which provides: (e) Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $100,000 and noncontingent, liquidated, secured debts of less than $350,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontin-gent, liquidated, unsecured debts that aggregate less than $100,000 and non-contingent, liquidated, secured debts of less than $350,000 may be a debtor under chapter 13 of this title. 11 U.S.C. § 109(e). Comprehensive claims that the Pearsons had more than $100,000 of noncontingent, liquidated unsecured debts because the Pearsons’ amended statement listed Comprehensive as an unsecured creditor with a claim of $127,450.12. The Pearsons contend that Comprehensive’s claim was not liquidated on the date of filing because at that time there was a substantial dispute regarding liability and whether the claim was secured or unsecured. Whether the Pearsons had on the date of filing their petition noncontingent, liquidated, unsecured debts in excess of $100,000 is a difficult issue because the Bankruptcy Code defines neither “contingent” nor “liquidated.” STATUTORY BACKGROUND The purpose of Chapter 13 is to enable an individual, under court supervision and protection, to develop a repayment plan under which creditors would be paid over an extended period rather than having the individual liquidate his assets under a straight Chapter 7 bankruptcy. Congress was especially concerned with individuals who are able to keep up with their obligations in normal times, but did not prepare for emergencies or unexpected events such as a serious illness in the family or a breadwinner being laid off from his or her job. H.R.Rep. No." }, { "docid": "18715836", "title": "", "text": "(e) Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $100,000 and noncontingent, liquidated, secured debts of less than $350,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts that aggregate less than $100,000 and noncontin-gent, liquidated, secured debts of less than $350,000 may be a debtor under chapter 13 of this title. The part of Section 109 that is material to the instant case is the provision that the debtor “owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $100,000.” All of the above debtors owed more than $100,-000 of such unsecured debts on the date they filed their petitions, but this fact was not shown on the face of the petitions. The schedules attached to their petitions showed that on such date they owed the following respective amounts of unsecured debts: Christopher, $2,543,546.60, Kutner, $3,724,-624.98, and Rosenthal, $1,215,317.64. On October 4, 1979, the United States Trustee appointed Daniel C. Stewart as a standing trustee (the trustee) in these cases in accordance with 11 U.S.C. § 1501, 28 U.S.C. § 586(b) and 11 U.S.C. § 151302. Upon investigating the schedules attached to the petitions of the debtors, as well as their financial affairs, the trustee discovered that each of the debtors had listed most of their unsecured debts as contingent when they were actually noncontingent and liquidated. As a result, each of the debtors owed more than $100,000 in unsecured debts. On October 9,1979, the trustee filed a request with the bankruptcy judge (the judge) under 11 U.S.C. § 1307(c) to convert the cases to proceedings under Chapter 7 of Title 11 for the reason that each of the debtors was ineligible to file a petition under Chapter 13. The respective debtors moved to strike the application of the trustee upon the ground that, he was not a party in interest under Chapter" }, { "docid": "7117704", "title": "", "text": "judicial notice of the state court’s judgment. This motion was filed after Slack’s initial brief before this court but prior to Wilshire’s response. Slack responded to the motion for judicial notice in a separate brief, and in his reply brief. Slack argues that the state court judgment is irrelevant to the issues presented in this appeal because it was entered after the filing of the bankruptcy petition and, therefore, cannot be used to determine the amount of his noncontin-gent, liquidated, unsecured debts. Before this court, Slack contends that the bankruptcy court erred in ruling that the stipulation regarding Wilshire’s losses demonstrated that the amount of the debt was liquidated as of the date the Chapter 13 petition was filed. He also contends that the state court’s tentative judgment finding him liable to Wilshire for $659,971 cannot be used collaterally to estop him from asserting that he did not owe the debt to Wilshire. Slack maintains that under either scenario, “as Wilshire can only establish the amount of its claim, and not Slack’s liability, Wilshire’s claim is un-liquidated.” Appellant’s Opening Brief at 6. II This court reviews de novo a district court’s decision to affirm a bankruptcy court’s order. See Fostvedt v. Dow (In re Fostvedt), 823 F.2d 305, 306 (9th Cir.1987). This court reviews the bankruptcy court’s decisions of law de novo and its findings of fact under the clearly erroneous standard. See id. Whether a debt is liquidated involves the interpretation of the Bankruptcy Code and is reviewed de novo. See Federal Deposit Ins. Corp. v. Wenberg (In re Wenberg), 94 B.R. 631, 633 (9th Cir. BAP 1988), aff'd, 902 F.2d 768 (9th Cir.1990). The amount of the debt is reviewed for clear error. See id. An individual qualifies for Chapter 13 relief only if his or her debts do not exceed a certain sum at the time of filing. At the time Slack filed his petition, section 109(e) stated: Only an individual with regular income that owes, on the date of filing the petition, noncontingent, liquidated, unsecured debts of less than $250,000 and noncontingent, liquidated, secured debts of" }, { "docid": "23143504", "title": "", "text": "to file and have considered a motion to convert their case. CONCLUSION Based on the foregoing, the bankruptcy court’s determination that the attorneys’ fees arising from the Texas bankruptcy litigation were “liquidated” for purposes of § 109(e) is AFFIRMED. Additionally, the case is remanded to allow the debtors to file a motion to convert pursuant to § 1307(a) and to allow the bankruptcy court the opportunity to address the merits of such motion. . It should be noted that the final judgment entered by the Texas bankruptcy court was in violation of the automatic stay arising out of the Wenberg’s California bankruptcy case and was, therefore, void. See In re Wingo, 89 B.R. 54, 57 (9th Cir. BAP 1988). However, the record indicates that the bankruptcy court in this case, did not rely on the Texas bankruptcy court’s post-petition action. Rather, the bankruptcy court in the instant case, made a separate determination on the amount of the attorneys’ fees pursuant to the pre-petition declaratory judgment. . 11 U.S.C. § 109(e) provides in the pertinent part: (e) Only an individual with regular income that owes, on the date of such filing of the petition, noncontingent, liquidated, unsecured debts of less than $100,000 and noncontin-gent, liquidated, secured debts of less than $350,000, or an individual with regular in-eóme and such individual’s spouse, ... that owe on the date of the filing of the petition, noncontingent, liquidated, unsecured debts that aggregate less than $100,000 and noncon-tingent, liquidated, secured debts of less than $350,000, may be a debtor under chapter 13 of this title. 11 U.S.C. § 109(e) (emphasis supplied). . In an extensive analysis, the Lambert court distinguished between the term “disputed debt\" and \"disputed claim.” Id., 43 B.R. at 918-19. By doing so, the Lambert court determined that Congress used the term \"debt” instead of \"claim” because it “did not wish the Section 109(e) eligibility determination for Chapter 13 debtors to be predicated upon the mere demands of creditors.” Id. at 919. The Lambert court pointed out that while some courts refuse to allow debtors to exclude disputed debts because it might" }, { "docid": "4779719", "title": "", "text": "U.S.C. § 109(e), which states: “Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $100,000.00 and noncontingent, liquidated, secured debts of less than $350,000.00, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts that aggregate less than $100,000.00 and noncontin-gent, liquidated, secured debts of less than $350,000.00 may be a debtor under Chapter 13 of this title.” The Debtors’ Schedules, as amended, reflect unsecured debt of $1,115,247.70, of which $76,576.78 is listed as noncontingent, liquidated and $1,038,671.00 is listed as contingent. No evidence was presented regarding the $1,038,671.00 contingent debt and, as such, it will not be considered by this Court for the purposes of Chapter 13 eligibility. The Debtors’ Schedules set forth secured debt of $279,800.00 which is secured by collateral which the Debtors value at $201,700.00. The Trustee and First Bank assert that the difference between the Bank’s collateral and secured claim ($78,100.00) should be treated as unsecured debt for a § 109(e) eligibility determination, while the Debtors contend the entire debt should be treated as secured. Accordingly, the issue before the Court is whether the amount of secured debt, above the value of the security, should be included as unsecured debt in calculation of the $100,000.00 unsecured debt limitation of 11 U.S.C. § 109(e). The issue presented has been decided both ways by the courts. Compare, In re Morton, 43 B.R. 215 (Bankr.E.D.N.Y. 1984) holding that the unsecured portion of a secured claim is not included in a § 109(e) eligibility determination, with In re Matter of Day, 747 F.2d 405 (7th Cir.1984), applying § 506 of the Code, holding the unsecured portion of a secured claim is included in a § 109(e) determination. There is no Ninth Circuit case on point. I conclude the better reasoned view should follow the Matter of Day rationale and include the unsecured portion of a secured debt in the § 109(e) determination," }, { "docid": "22707561", "title": "", "text": "24. Since the sufficiency of the evidence of bad faith is not at issue, we may assume that Marrama did have more income available when he sought to convert than when he commenced the Chapter 7 case. The judicial council of any circuit is authorized by statute to establish a bankruptcy appellate panel service, comprising bankruptcy judges, to hear appeals from the bankruptcy courts with the consent of the parties. See 28 U. S. C. § 158(b); Connecticut Nat. Bank v. Germain, 503 U. S. 249, 252 (1992). The First Circuit has established this service. Subsection (e) of 11 U. S. C. §109 provides: “Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $250,000 and noncontingent, liquidated, secured debts of less than $750,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts that aggregate less than $250,000 and noncontingent, liquidated, secured debts of less than $750,000 may be a debtor under chapter 13 of this title.” These dollar limits are subject to adjustment for inflation every three years. See § 104(b). Marrama initiated a new Chapter 13 case the day after we granted certiorari in the present case. The new case was dismissed on the grounds that, under § 109(e), he was ineligible to be a Chapter 13 debtor. See In re Marrama, 345 B. R. 458, 463-464, and n. 10 (Bkrtcy. Ct. Mass. 2006). As the Bankruptcy Judge made no such determination on the record before us in this case, and as it is not necessary to our decision that such a determination be made, we do not consider whether Marrama fails to meet the § 109(e) debt limit. Title 11 U. S. C. § 1307(c) provides, in relevant part: “Except as provided in subsection (e) of this section, on request of a party in interest or the United States trustee and after notice and a hearing, the court may convert" }, { "docid": "18523009", "title": "", "text": "whether the Court, in determining Chapter 13 eligibility, is limited to a review of the original schedules, if such schedules have been filed in good faith. For the reasons stated below, the Court finds that it is not limited to the schedules filed in good faith, and therefore, the ruling of the Bankruptcy Court is AFFIRMED. Section 109 of the Bankruptcy Code is entitled “Who May be a Debtor,” and sets forth general eligibility requirements necessary to proceed under the Bankruptcy Code, and the specific eligibility requirements applicable to each Chapter of the Bankruptcy Code. The Chapter in question in this appeal is Chapter 13. Section 109(e) deals with Chapter 13 eligibility requirements, and provides: Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $100,000 and noncontingent, liquidated, secured debts of less than $350,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontin-gent, liquidated, unsecured debts that aggregate less than $100,000 and non-contingent, liquidated, secured debts of less than $350,000 may be a debtor under Chapter 13 of this title. (Emphasis Added). Regarding the eligibility requirements of 11 U.S.C. § 109(e), Collier on Bankruptcy sets forth, in pertinent part: The eligibility criteria set forth in respect to this provision are specific and restrictive, with monetary amounts established to govern eligibility so as to insure that those persons for whose benefit the chapter is directed are those who employ its provisions. Thus, the fundamental purpose of section 109(e) is to establish the dollar limitations on the amount of indebtedness that an individual with regular income can incur and yet file under Chapter 13.... In contrast to provisions involving Chapter 7 debtors, the language of section 109(e) is drafted explicitly to require that a Chapter 13 debtor owes debts on the date that the petition is filed. However, while the debtor must owe some debts, he cannot owe debts in too large an amount and still expect" }, { "docid": "7117707", "title": "", "text": "of the debts owed)); In re Morton, 43 B.R. 215, 220 (Bankr.E.D.N.Y.1984). Because we cannot consider the final judgment entered in the state court, after the petition was filed, in deciding the amount of the debt owed by Slack, we must deny Wilshire’s motion for judicial notice as irrelevant to our task. Under § 109(e), a debtor is ineligible for Chapter 13 relief if his or her noncontin-gent, liquidated, unsecured debts exceed the statutory limit of $250,000. See 11 U.S.C. § 109(e) (1997). This circuit has held that a debt is liquidated for the purposes of calculating eligibility for relief under § 109(e) if the amount of the debt is readily determinable. In In re Fostvedt, we stated that the question of whether a debt is liquidated “turns on whether it is subject to ‘ready determination and precision in computation of the amount due.’ ” 823 F.2d at 306 (quoting Sylvester v. Dow Jones and Co., Inc. (In re Sylvester), 19 B.R. 671, 673 (9th Cir. BAP 1982)). In In re Wenberg, we affirmed for the reasons stated by the bankruptcy appellate panel (“BAP”). See 902 F.2d at 768. The BAP stated in its opinion: “The definition of ‘ready determination’ turns on the distinction between a simple hearing to determine the amount of a certain debt, and an extensive and contested evidentiary hearing in which substantial evidence may be necessary to establish amounts or liability.” In re Wenberg, 94 B.R. at 634. Bankruptcy courts in this circuit have held that disputes regarding liability arising 'out of contract and tort claims do not render a debt unliquidated. See Nicholes v. Johnny Appleseed of Wash. (In re Nicholes), 184 B.R. 82, 90 (9th Cir. BAP 1995) (debt liquidated because amount easily ascertainable); Loya v. Rapp (In re Loya), 123 B.R. 338, 341 (9th Cir. BAP 1991) (even though claim of creditors was based on tort and no judgment had been entered, debt liquidated because some of the creditors would admit that claim was barred by statute of limitations and, therefore, the amount was readily ascertainable at $0 after a simple hearing); In" }, { "docid": "18715835", "title": "", "text": "SKELTON, Senior Judge. This is a bankruptcy case. The facts are not in dispute and are generally as follows. Originally three debtors, Charles S. Christopher, Jonathan Kutner, and Samuel Marvin Rosenthal filed petitions in bankruptcy in the United States Bankruptcy Court for the Northern District of Texas, Dallas Division, on October 3,1979, under Chapter 13 of the new Bankruptcy Code (the Code) enacted by Congress on November 6,1978, as Public Law 95-598, 92 Stat. 2549,11 U.S.C., effective October 1, 1979. This code replaced the Bankruptcy Act (the Act) of 1898. In order to be eligible for relief under Chapter 13, the debtors had to comply with 11 U.S.C. § 109(a) and (e) which provide in pertinent part as follows: § 109. Who may be a debtor ■ ■ (a) Notwithstanding any other provision of this section, only a person that resides in the United States, or has a domicile, a place of business or property in the United States, or a municipality, may be a debtor under this title. * * * »te * * (e) Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $100,000 and noncontingent, liquidated, secured debts of less than $350,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts that aggregate less than $100,000 and noncontin-gent, liquidated, secured debts of less than $350,000 may be a debtor under chapter 13 of this title. The part of Section 109 that is material to the instant case is the provision that the debtor “owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $100,000.” All of the above debtors owed more than $100,-000 of such unsecured debts on the date they filed their petitions, but this fact was not shown on the face of the petitions. The schedules attached to their petitions showed that on such date they owed the following respective" }, { "docid": "6572391", "title": "", "text": "of reorganization. Finally, the debtor stresses that the amount paid under the plan should not be critical to the court’s analysis; but rather, the court must address whether the repayment satisfies the purposes of chapter 13 and demonstrates the sincere intentions and available resources of the debtor. Jurisdiction The matters before the court concern the Creditor’s motion to dismiss and objection to confirmation and as such are core proceedings within the meaning of 28 U.S.C. § 157(b)(2)(A) and (L). Pursuant to 28 U.S.C. § 157(a) and General Rule 45 of the Rules of the United States District Court for the Northern District of Indiana, this case has been referred to the undersigned bankruptcy judge for hearing and determination. The Creditor, however, has questioned the court’s jurisdiction over the debtor. The Creditor asserts that David Belt (“Belt”) may not be a debtor under chapter 13 because his unsecured debts exceed the jurisdictional limits set out in the Bankruptcy Code. The Creditor urges the court to find that it is without jurisdiction and summarily dismiss the case. The court refuses to do so for the reasons which follow. The statutory provision defining who may be a debtor states: (e) Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $100,000 and noncontingent, liquidated, secured debts of less than $350,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontin-gent, liquidated, unsecured debts that aggregate less than $100,000 and non-contingent, liquidated, secured debts of less than $350,000 may be a debtor under chapter 13 of this title. 11 U.S.C. § 109(e) (1989). The Creditor acknowledges that typically, a liability arising from the commission of a tort is contingent because it is never known if the tortfeasor will be held liable until judgment is rendered by a court. Craig Corp. v. Albano (In re Albano), 55 B.R. 363, 367 (N.D.Ill.1985). So, until adjudication of the tortfeasor’s liability, any claim would be" }, { "docid": "17976559", "title": "", "text": "1983, filed a complaint to avoid, as a preference, an agreement with Comprehensive which was recorded as a mortgage against the Pearsons’ residence. The bankruptcy court set aside the agreement as a preference on May 24, 1983. On May 23, 1983, the Pearsons amended their Chapter 13 statement listing Comprehensive as an unsecured creditor with a claim of $127,450.12. The Pearsons amended the statement to comport with the proofs of claim filed by the creditors, but reserved the right to contest the validity and amount of any such claim. At the confirmation hearing on May 25, 1983, Comprehensive objected to the confirmation of the Pearsons’ Chapter 13 plan on the ground that the Pearsons did not meet the threshold eligibility standard set forth in section 109(e) of the Bankruptcy Code. Comprehensive contended that the Pear-sons had more than $100,000 of noncontin-gent, liquidated, unsecured debt as shown by the amended Chapter 13 statement. The bankruptcy court held that at the time of filing the bankruptcy petition the unsecured debt was less than $100,000 and the subsequent amended statement did not cause the Pearsons to then become ineligible. The district court affirmed holding that the Pearsons met the eligibility standard at the time the bankruptcy petition was filed, and that events subsequent to the filing of the petition cannot disqualify the Pearsons. ISSUE The issue in this case is whether the Pearsons met the Chapter 13 eligibility requirement of section 109(e) which provides: (e) Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $100,000 and noncontingent, liquidated, secured debts of less than $350,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontin-gent, liquidated, unsecured debts that aggregate less than $100,000 and non-contingent, liquidated, secured debts of less than $350,000 may be a debtor under chapter 13 of this title. 11 U.S.C. § 109(e). Comprehensive claims that the Pearsons had more than $100,000 of noncontingent, liquidated unsecured debts" }, { "docid": "3451481", "title": "", "text": "will be treated as fully secured for confirmation purposes. The Court, therefore, holds that the undersecured portion of a debt must be included within the unsecured portion of the debt limits in § 109(e) even when the debt in question is a mortgage on the debtors’ primary residence. The Debtors next alternatively argue that because each of them has unsecured debt less than $336,900, because not all of their unsecured debt is joint debt, they should be allowed to proceed as debtors in a Chapter 13 case. The UST objects to this argument, claiming § 109(e) requires both spouse’s debts to be considered together when determining whether they fall under the unsecured debt limit. The parties have not provided any case law addressing this issue, and the Court was unable to locate any cases directly on point. The statute, which is the first place the Court must look, states: Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $336,900 and noncontingent, liquidated, secured debts of less than $1,010,650, or an individual with regular income and such individual’s spouse, ..., that owe, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts that aggregate less than $336,900 and noncontin-gent, liquidated, secured debts of less than $1,010,650 may be a debtor under chapter 13 [of the Bankruptcy Code]. The UST focuses on the portion of the statute that reads “an individual with regular income and such individual’s spouse ... that owe ... unsecured debts that aggregate less than $336,900” to support its claim that all debts of both spouses must be combined for purposes of § 109(e). The Court has located one case that addressed this issue, but it was presented in a significantly different procedural posture. In In re Weiser, the debtors filed a joint Chapter 13 petition. One of their creditors objected to confirmation of their plan on the basis that the debtors were ineligible for relief under Chapter 13 because their combined noncontingent and liquidated unsecured debts exceeded the § 109(e)" }, { "docid": "3741645", "title": "", "text": "the time this case was filed it provided: Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $250,000 and noncontingent, liquidated, secured debts of less than $750,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts that aggregate less than $250,000 and noncontingent, liquidated, secured debts of less than $750,000 may be a debtor under chapter 13 of this title. A. Evidence Used in Making § 109(e) Determination: 1. Proofs of Claim First, debtors maintain that it was error to consider the filed proofs of unsecured claim that totaled more than $400,000, which claims were deemed allowed because no objection had been filed. They argue that a § 109(e) eligibility inquiry should be restricted to a review of the debtors’ schedules filed in good faith. We have held that a bankruptcy court may look past the schedules to other evidence submitted when a good faith objection to the debtor’s eligibility under § 109(e) is raised. In re Scovis, 231 B.R. 336 (9th Cir. BAP 1999); In re Quintana, 107 B.R. 234, 239 n. 6 (9th Cir. BAP 1989), aff'd, 915 F.2d 513 (9th Cir.1990); In re Sylvester, 19 B.R. 671 (9th Cir. BAP 1982); accord, In re Williams Land Co., 91 B.R. 923 (Bankr.D.Or.1988). We acknowledge that there is contrary authority in other circuits. In re Pearson, 773 F.2d 751 (6th Cir.1985); In re Camp, 170 B.R. 610 (Bankr.N.D.Ohio 1994); In re Robertson, 84 B.R. 109 (Bankr.S.D.Ohio 1988). Nevertheless, we see no reason to depart from our established precedent. Accordingly, we conclude that the bankruptcy court did not err in looking beyond the debtors’ schedules to the allowed unsecured claims that were on file. 2. Statements contained in the Chapter IS Plan The debtors contend that the bankruptcy court committed error by relying, at least in part, on the plan’s characterization of unsecured debt. Clearly, the statements contained in the debtor’s proposed" }, { "docid": "1068182", "title": "", "text": "to Dismiss under § 707(b) is denied. . The total includes at least twenty-three different Visa and Mastercards, all of which were obtained by completing unsolicited applications from banks all over the country. . At the hearing on the United States Trustee’s motion, the debtors presented yet another schedule of expenses totalling $3,846.51. Because of my disposition of this motion, it is unnecessary to address the appropriateness of some of the expenses or their amounts. . Notice of the motion was given to all creditors. None of the creditors appeared at the hearing or otherwise responded to the motion. Apparently, the debtors’ creditors consider bankruptcies just another cost of doing business to be passed along to other consumers in the form of higher interest rates. . 11 U.S.C. § 109(e) provides: (e) Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $100,000 and noncontin-gent, liquidated, secured debts of less than $350,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, non-contingent, liquidated, unsecured debts that aggregate less than $100,000 and noncontin-gent, liquidated, secured debts of less than $350,000 may be a debtor under chapter 13 of this title. 11 U.S.C. § 109(e). . See In re Shands, 63 B.R. 121, 124 (Bktcy.E.D.Mich.1985) (the debtor’s ability to pay 100% of her debts within three years, when coupled with \"some egregious circumstance,” is sufficient to trigger dismissal for substantial abuse). . See In re Keniston, 85 B.R. 202, 223 (Bktcy.D.N.H.1988) (\"the dismissal power under section 707(b) is not essentially different from the established power of a bankruptcy court to dismiss a petition under any chapter of the Bankruptcy Code that is filed with a lack of good faith or as an abuse of the process under §§ 105(a) and 707(a) of the Code”); In re Krohn, 87 B.R. 926 (N.D.Ohio 1988) (whether the debtor exhibited bad faith in the filing of his petition and schedules or engaged in" } ]

[ { "docid": "15104238", "title": "", "text": "351.308(d) (same). To “corroborate” means that “the [Department] will examine whether the secondary information to be used has probative value.” 19 C.F.R. § 351.308(d). The agency may examine, but is not limited to, the following “independent sources” in corroborating secondary information: “published price lists, official import statistics and customs data, and information obtained from interested parties during the instant investigation or review.” Id. To comply with the statute, “Commerce must assure itself that the [dumping] margin it applies is [not][ir]relevant ... or lacking a rational relationship” to the evidence presented in the record. Ferro Union, Inc. v. United States, 23 CIT 178, 205, 44 F.Supp.2d 1310, 1335 (1999) (holding that Commerce cannot apply a margin that has been discredited). Commerce has broad, but not unbounded, discretion in determining what would be an accurate and reasonable dumping margin where a respondent has been found uncooperative. F.LLI De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d, 1027, 1032 (Fed.Cir.2000) (“Particularly in the case of an uncooperative respondent, Commerce is in the best position, based on its expert knowledge of the market and the individual respondent to select adverse facts that will create the proper deterrent to non-cooperation with its investigations and assure a reasonable margin. Commerce’s discretion in these matters, however, is not unbounded.”) (‘De Cecco”)- Commerce cannot “‘overreach reality’ ” when calculating a dumping margin, in that the rate must be a “ ‘reasonably accurate estimate of the [plaintiffs] actual rate, albeit with some built-in increase intended as a deterrent to noncompliance.’ ” See Ta Chen II, 298 F.3d at 1340 (quoting De Cecco, 216 F.3d at 1032). Put differently, the agency cannot impose “punitive, aberrational, or uncorroborated margins.” De Cecco, 216 F.3d at 1032 (citation omitted). The Court now reviews Plaintiffs arguments in light of these legal standards. Contrary to Plaintiffs first argument, Commerce did not establish a new legal standard in corroborating the Domestic Producers’ COM data with Plaintiffs COM data. Rather, it appears that Commerce made a factual conclusion that the Domestic Producers’ COM data was rationally related to that provided by Plaintiff and" } ]

[ { "docid": "1496048", "title": "", "text": "compares the goods’ normal value, derived from factors of production (“FOP”) as valued in a surrogate market economy, to the goods’ export price. 19 U.S.C. § 1677b(c). By statute, in selecting the surrogate country, Commerce, must use the “best available information,” and choose a country “at a level of economic development comparable to that of the [NME, that is a] ... significant producer of comparable merchandise.” Id. For the eighteenth review, covering the period of review (“POR”) from November 1, 2011 through October 31, 2012, Commerce selected Shenzhen Xinboda Industrial Co., Ltd. (“Xinboda”) and Golden Bird as the mandatory respondents. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 77 Fed. Reg. 77,017, 77,020-22 (Dep’t Commerce Dec. 31, 2012). In the Fresh Garlic from the People’s Republic of China: Final Results and Partial Rescission of the 18th Antidumping Duty Administrative Review; 2011-2012, 79 Fed. Reg. 36,721, 36,722 (Dep’t Commerce June 30, 2014) (“Final Results”), Commerce selected total adverse facts available (“total AFA”) for Golden Bird and the PRC-wide rate of $4.71/kg as Golden Bird’s total AFA rate. Golden Bird appealed, and the court upheld Commerce’s decision to select total AFA for Golden Bird. FGPA, 121 F.Supp.3d at 1320, 1327. The court, however, rejected Commerce’s selection of the PRC-wide rate as Golden Bird’s total AFA rate because Commerce had failed to make a finding that Golden Bird’s separate rate certification was deficient or unreliable. Id. at 1328. On remand, Commerce found, under protest, Golden Bird eligible for a separate rate. Remand Results at 14. Commerce reiterated its position that “the severity of Golden Bird’s failure to cooperate and the centrality of the deficient response to the calculation of a dumping margin” sufficiently call into question the integrity of Golden Bird’s information regarding its operation as a separate entity. Id. at 16 (quoting FGPA, 121 F.Supp.3d at 1326). Commerce, however, refused to make a specific finding regarding the deficiency of Golden Bird’s separate rate information because it reasoned that such a finding could be reached only by “follow[ing] the same logic that the Department applied [previously] and" }, { "docid": "2979442", "title": "", "text": "use in this administrative review.” Id. Lifestyle and Orient allege that Commerce erred when it assigned Orient the PRC-wide rate of 216.01% as an AFA rate, despite Orient’s separate rate status. Pl.’s Br. at 38-39; Intervenor PL’s Br. at 16. Orient and Lifestyle ask the court to assign Orient the rate granted to non-mandatory respondents or, in the alternative, remand this matter to Commerce so that Commerce may redetermine the AFA rate for Orient. Intervenor PL’s Br. at 18-19; PL’s Br. at 41. In calculating an AFA rate, Commerce may rely on secondary information, which includes information derived from the petition, a final determination, or any previous review or determination. 19 U.S.C. § 1677e(b); 19 C.F.R. § 351.308(c)(1). Where Commerce uses “secondary information rather than information obtained in the course of an investigation or review,” it must corroborate that information by demonstrating that it has probative value. 19 U.S.C. § 1677e(e); KYD, Inc. v. United States, 607 F.3d 760, 765 (Fed.Cir.2010). Here, Commerce chose secondary information a rate from a prior administrative review and therefore needed to corroborate that rate. See Gallant, 602 F.3d at 1325 (recognizing the statutory requirement that secondary information, such as a petition rate, be corroborated). Corroboration demands that Commerce use reliable facts with “some grounding in commercial reality.” Gallant, 602 F.3d at 1323-24; see F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed.Cir.2000) (AFA rates must be reasonably accurate estimates of respondents’ rates with some built-in increase as a deterrent for non-compliance). Indications that a rate may not reflect commercial reality include significantly lower rates for cooperating respondents and the presence of more recent, conflicting data. See Gallant, 602 F.3d at 1324. As the rate becomes larger and greatly exceeds the rates of cooperating respondents, Commerce must provide a clearer explanation for its choice and ample record support for its determination. See Taifa III, 760 F.Supp.2d at 1386 n. 7. Here, the highest separate rate assigned in the current review to a company other than Orient was 29.89%, which was the rate assigned to eighteen parties. Fi" }, { "docid": "2979443", "title": "", "text": "needed to corroborate that rate. See Gallant, 602 F.3d at 1325 (recognizing the statutory requirement that secondary information, such as a petition rate, be corroborated). Corroboration demands that Commerce use reliable facts with “some grounding in commercial reality.” Gallant, 602 F.3d at 1323-24; see F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed.Cir.2000) (AFA rates must be reasonably accurate estimates of respondents’ rates with some built-in increase as a deterrent for non-compliance). Indications that a rate may not reflect commercial reality include significantly lower rates for cooperating respondents and the presence of more recent, conflicting data. See Gallant, 602 F.3d at 1324. As the rate becomes larger and greatly exceeds the rates of cooperating respondents, Commerce must provide a clearer explanation for its choice and ample record support for its determination. See Taifa III, 760 F.Supp.2d at 1386 n. 7. Here, the highest separate rate assigned in the current review to a company other than Orient was 29.89%, which was the rate assigned to eighteen parties. Fi nal Results, 74 Fed.Reg. at 41,380. Commerce also assigned a 0% rate to two companies. Id. at 41,381. Furthermore, Orient had been assessed a significantly lower rate of 7.28% from 2006 until 2008, however it was not individually examined during that period. Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order/Pursuant to Court Decision: Wooden Bedroom Furniture From the People’s Republic of China, 71 Fed.Reg. 67,099, 67,099 (Dep’t Commerce Nov. 20, 2006). Although Commerce did compare Kunyu’s 216.01% rate with a large number (in absolute terms) of Yihua Timber’s sales, Commerce’s total failure to address the dramatic increase in Orient’s rate from 7.28% to 216.01%, where the non-PRC-wide rates range from 0% to 30%, raises the concern that “[tjhere is little likelihood that in any real world this could be an approximation of an actual rate.” Taifa III, 760 F.Supp.2d at 1383. Orient is at least entitled to an explanation and supporting evidence regarding their 3000% increase in margin, which is also 700% greater than the highest separate" }, { "docid": "2979488", "title": "", "text": "42, Nov. 16, 2010. During the period of review, Yihua Timber exported [[Confidential Data Deleted]] to the United States. Mem. in Supp. of Consol. PL’s Mot. for J. on the Agency R. Under Rule 56.2 Filed by Guangdong Yihua Timber Indus. Co., Ltd. (\"Consol. PL’s App.”) Tab 1, at 2. The Government has not stated what percentage of Yihua Timber’s sales were used to corroborate Orient’s rate and what the significance of such a percentage would be. See Gallant Ocean (Thai.) Co. v. United States, 602 F.3d 1319, 1325 (Fed.Cir.2010) (holding an AFA rate uncorroborated when Commerce failed to \"show that a small percentage of the mandatory respondents' transactions represented a reasonably accurate estimate of [non-participating respondent’s] actual dumping margin”). .Lifestyle claims that Commerce de facto revoked Orient’s separate rate status by assigning Orient the PRC-wide rate. PL's Br. at 40. Once a separate rate status determination is made, Commerce may not apply the PRC-wide rate, as such, to an entity. Qingdao Taifa Grp. Co. v. United States, 637 F.Supp.2d 1231, 1241 (CIT 2009) (“Taifa II\"). Here, Commerce did not assign Orient the PRC-wide rate, but rather the rate from a cooperating company corroborated with data from the current period of review. Issues and Decision Memorandum at 87-88. This claim lacks merit as Commerce did not assign the PRC-wide rate per se, but rather selected the same rate based on separate considerations. Orient shares the same rate as the PRC-wide entity because Commerce applied AFA to both the PRC-wide entity and Orient because neither Orient nor the PRC provided any of the requested production information. Commerce has in the past calculated the same AFA rate for separate rate respondents and the PRC-wide entity. See AFMC’s Resp. in Opp. to Resp’ts’ Rule 56.2 Mot. for J. on the Agency R. (\"Intervenor Def.’s Resp. Br.”) at 55. Nonetheless, the leap to use of the PRC-wide rate as a separate AFA rate presents a problem, as explained in the text. . Although clearly distinct standards under Federal Circuit precedent, corroboration and reliability seem to collapse together in that they require demonstration of the" }, { "docid": "2979441", "title": "", "text": "was deficient. Def.’s App. Doc. 366, 368, 374. In the Final Results, Commerce assigned Orient a rate of 216.01% based on adverse facts available (“AFA”) due to Orient’s failure to respond to Commerce’s questionnaire. Issues and Decision Memorandum at 85-87. Commerce calculated this rate by choosing the highest company-specific calculated rate from any segment of the proceeding: 216.01% assigned to Shenyang Kunyu Wood Industry Co., Ltd. (“Kunyu”) in a prior administrative review. Issues and Decision Memorandum at 87-88; Wooden Bedroom Furniture from the People’s Republic of China: Final Results of the 2001-2005 Semi-Annual New Shipper Reviews, 71 Fed.Reg. 70,739, 70,739 (Dep’t Commerce Dec. 6, 2006). Commerce attempted to corroborate Kunyu’s rate as to Orient with the finding “that the margin of 216.01 percent was within the range of margins calculated on the record of the instant administrative review.” Issues and Decision Memorandum at 88. Commerce found that “[b]ecause the record of this administrative review contains margins within the range of 216.01 percent, ... the rate from the 2004 2005 review continues to be relevant for use in this administrative review.” Id. Lifestyle and Orient allege that Commerce erred when it assigned Orient the PRC-wide rate of 216.01% as an AFA rate, despite Orient’s separate rate status. Pl.’s Br. at 38-39; Intervenor PL’s Br. at 16. Orient and Lifestyle ask the court to assign Orient the rate granted to non-mandatory respondents or, in the alternative, remand this matter to Commerce so that Commerce may redetermine the AFA rate for Orient. Intervenor PL’s Br. at 18-19; PL’s Br. at 41. In calculating an AFA rate, Commerce may rely on secondary information, which includes information derived from the petition, a final determination, or any previous review or determination. 19 U.S.C. § 1677e(b); 19 C.F.R. § 351.308(c)(1). Where Commerce uses “secondary information rather than information obtained in the course of an investigation or review,” it must corroborate that information by demonstrating that it has probative value. 19 U.S.C. § 1677e(e); KYD, Inc. v. United States, 607 F.3d 760, 765 (Fed.Cir.2010). Here, Commerce chose secondary information a rate from a prior administrative review and therefore" }, { "docid": "19192632", "title": "", "text": "case brief “present[ing] all arguments that continue in [its] view to be relevant to [Commerce’s] final determination or final results.” 19 C.F.R. § 351.309(c)(2); see Nakornthai Strip Mill Pub. Co. v. United States, 558 F.Supp.2d 1319, 1329 (CIT 2008). A party, however, may seek judicial review of an issue that it did not raise in a case brief if Commerce did not address the issue until its final decision, because in such a circumstance the party would not have had a full and fair opportunity to raise the issue at the administrative level. LTV Steel Co. v. United States, 985 F.Supp. 95, 120 (CIT 1997). Here, the January 2008 Preliminary Results applied a low, separate rate of 3.82% for Taifa and did not rely on AFA. See Preliminary Results, 73 Fed. Reg. at 2219-22. Case briefs were due June 20, 2008, and rebuttal briefs were due June 25, 2008. See Final Results, 73 Fed. Reg. at 43,685. Taifa did not file a case brief or rebuttal brief. See id. Commerce first indicated that it would apply total AFA in the Issues and Decision Memorandum and AFA Memorandum issued on July 14, 2008, and then applied total AFA and assigned Taifa the PRC-wide rate of 383.60% in the Final Results issued later that month. See id. at 43,688; Is sues and Decision Memorandum at 6; AFA Memorandum at 11. Because the Preliminary Results were favorable to Taifa, and Commerce did not address the AFA issue until after the deadline for case briefs or the PRC-wide rate issue until the Final Results, Taifa did not have a fair opportunity to challenge these issues at the administrative level. See Saha Thai Steel Pipe Co. v. United States, 828 F.Supp. 57, 59-60 (CIT 1993) (holding that a respondent was not required to file a case brief or rebuttal brief to exhaust its administrative remedies where it had “received all the remedy it sought from the preliminary determination, ie., it received a very low company-specific duty assessment,” but Commerce assigned a higher country-wide rate in the final determination). Taifa is not required to predict that" }, { "docid": "2979489", "title": "", "text": "II\"). Here, Commerce did not assign Orient the PRC-wide rate, but rather the rate from a cooperating company corroborated with data from the current period of review. Issues and Decision Memorandum at 87-88. This claim lacks merit as Commerce did not assign the PRC-wide rate per se, but rather selected the same rate based on separate considerations. Orient shares the same rate as the PRC-wide entity because Commerce applied AFA to both the PRC-wide entity and Orient because neither Orient nor the PRC provided any of the requested production information. Commerce has in the past calculated the same AFA rate for separate rate respondents and the PRC-wide entity. See AFMC’s Resp. in Opp. to Resp’ts’ Rule 56.2 Mot. for J. on the Agency R. (\"Intervenor Def.’s Resp. Br.”) at 55. Nonetheless, the leap to use of the PRC-wide rate as a separate AFA rate presents a problem, as explained in the text. . Although clearly distinct standards under Federal Circuit precedent, corroboration and reliability seem to collapse together in that they require demonstration of the same facts and legal conclusions. See, e.g., KYD, 607 F.3d at 766. Here, Commerce stated it corroborated the rate by using \"high-volume transaction-specific margins for cooperative companies which are ... higher than the ... [assigned adverse facts available] rate.” Id.; see NSK Ltd. v. United States, 346 F.Supp.2d 1312, 1335 (CIT 2004). . The Government and AFMC assert that Ta Chen stands for the proposition that a small percentage of sales can be used to corroborate an AFA rate. See Def.’s Br. at 37-38; Intervenor Def.'s Resp. Br. at 54, 60-61; Ta Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330 (Fed.Cir.2002). “Ta Chen was not a corroboration case as Commerce relied on primary information,” Gallant, 602 F.3d at 1324. . [[Confidential Data Deleted]] This radical growth suggests that the business model that yielded Orient a 7.28% rate had given way to a more aggressive business model. Finally, Orient was on notice that Commerce had, in the prior administrative review, assigned Kunyu's 216.01% rate to a non-participating mandatory respondent. Wooden Bedroom Furniture from" }, { "docid": "20584540", "title": "", "text": "F.Supp.2d at 1301 (citing KYD, 607 F.3d at 764-68). Here, Commerce corroborated the petition rate using information from the more recent Section 129 Proceeding and incorporated post-investigation changes due to domestic and international litigation. Thus, .that the AFA rate was selected from the 2003 petition does not undermine its relevance in light of Commerce’s detailed explanation of why the rate continues to be relevant based on updated record evidence. This is not to say that outdated data would continue to be reliable if there was available more recent data on the record for non-cooperating respondents, but here the data Hilltop points to is that of cooperative respondents. And the most recent China-wide rate was 112.81%, as it was used in the antidumping investigation and each successive administrative review of the an-tidumping duty order. As to Hilltop’s argument regarding the availability of lower margins calculated for cooperating respondents, the company’s reliance on separate rates calculated for cooperative companies is unavailing. As the Government points out, “the fact that lower dumping margins have been calculated for respondents that have demonstrated their eligibility for a separate rate in certain segments of this proceeding has little bearing on the rate applied to the China-wide entity.” Government’s Br-1647, at 67; Government’s Br.-1514, at 69. Indeed, as the CIT found, “[i]n the [non-market economy] context, ... the inference that the countrywide entity as a whole may be dumping at margins significantly above the cooperating separate rate market participants is not unreasonable.” Ad Hoc Shrimp II, 992 F.Supp.2d at 1300. Furthermore, this court has clarified that AFA rates can be significantly higher than rates calculated for cooperating respondents, see, e.g., KYD, 607 F.3d at 765-66 (affirming application of petition rate many times higher than those of cooperating respondents), particularly since such rates should reflect an “inference that is adverse to the interests of that party,” 19 U.S.C. § 1677e(b). Indeed, “Commerce need not select, as the AFA rate, a rate that represents the typical dumping margin for the industry in question.” KYD, 607 F.3d at 765-66. In addition, Hilltop’s argument that Commerce should rely on the rates" }, { "docid": "19192641", "title": "", "text": "from the record. Be cause Taifa attempted to withhold or alter sales and production documents that Commerce requested, Commerce properly concluded that the information that Taifa provided was “incomplete and unreliable” and that no information on the record could be used to calculate an accurate dumping margin for Taifa. Issues and Decision Memorandum at 6. Commerce therefore could disregard all of the information Taifa provided, apply AFA to all of the facts relevant to calculating Taifa’s dumping margin, and apply a substitute rate. See Shanghai Taoen Int’l Trading Co. v. United States, 360 F.Supp.2d 1339, 1348 n. 13 (CIT 2005) (affirming Commerce’s decision to apply AFA to all of the facts relevant to calculating the respondent’s margin where “core” information that it provided was not reliable). III. Application of the PRC-wide rate as the AFA rate Taifa also claims that Commerce’s selection of the PRC-wide rate as the AFA rate was not supported by substantial evidence or in accordance with law. (Pl.’s Br. 8-11, 18-20.) This claim has merit. In determining the AFA rate, Commerce may rely on information from “(1) the petition, (2) a final determination in the investigation ..., (3) any previous review ... or determination ..., or (4) any other information placed on the record.” 19 U.S.C. § 1677e(b). When relying on secondary information not obtained during the review, Commerce “shall, to the extent practicable, corroborate that information from independent sources that are reasonably at [its] disposal.” Id. § 1677e(c). The AFA rate should “be a reasonably accurate estimate of the respondent’s actual rate, albeit with some built-in increase intended as a deterrent to noncompliance,” not a punitive or unreasonably high rate “with no relationship to the respondent’s actual dumping margin.” F.lli De Ceceo Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed.Cir.2000). Because an AFA rate must bear some relationship to the respondent’s actual dumping margin, Commerce’s ability to apply the PRC-wide rate as a respondent’s AFA rate is limited. See Gerber Food (Yunnan) Co. v. United States, 387 F.Supp.2d 1270, 1287-88 (CIT 2005). At present, Commerce applies a presumption of" }, { "docid": "1630075", "title": "", "text": "& Dec. Mem. at 18; see Gallant Ocean, 602 F.3d at 1324 (To be reliable, “Commerce must select secondary information that has some grounding in commercial reality.”). Furthermore, this court has clarified that when Commerce chooses a calculated dumping margin from a prior segment of the proceeding as the AFA rate, that rate is reliable. See KYD, 607 F.3d at 766-67 (Commerce’s selection of the highest prior margin as the AFA rate reflects “a common sense inference that the highest prior margin is the most probative evidence of current margins because, if it were not so, the [responding party] knowing of the rule, would have produced current information showing the margin to be less.”). Commerce further determined the rate was relevant because it was applied to the China-wide entity in the sixth and seventh' administrative reviews. See Issues & Dec. Mem. at 18-19. In addition, Dongtai Peak has not identified any record evidence indicating this rate lacked probative value, including any evidence regarding fluctuations in sales prices, production and transportation costs, or market conditions. To the extent Appellant claims Commerce erred in choosing an AFA rate that was not based on Dongtai Peak’s own sales and production data for the current period of review, this argument is meritless. Because Appellant was part of the China-wide entity, Commerce was not required to calculate a separate AFA rate for Dongtai Peak and it was unnecessary for Commerce to corroborate the AFA rate for the China-wide entity using Dongtai Peak’s own data. Substantial evidence supports Commerce’s use of AFA in this case and its selection of an AFA rate for the China-wide entity. Conclusion For the foregoing reasons, the decision of the United States Court of International Trade is AFFIRMED . A \"nonmarket economy country” is \"any foreign country that [Commerce] determines does not operate on market principles of cost or pricing structures, so that sales of merchandise in such country do not reflect the fair value of the merchandise.” 19 U.S.C. § 1677(18)(A). \"Because it deems China to be a nonmarket economy country, Commerce generally considers information on sales in China and" }, { "docid": "23463649", "title": "", "text": "B. Commerce may use adverse inferences when calculating a rate if an investigated respondent refuses to cooperate by impeding the investigation or not properly providing information. Commerce typically concludes that some part of the country-wide entity has not cooperated in the proceeding because those that have responded do not account for all imports of the subject merchandise. § 1677e(b). Commerce is required to corroborate chosen AFA rates to ensure that they fall within the purportedly acceptable range of margins determined. § 1677e(c). In order to secure a separate rate from the countrywide rate, respondents in a nonmarket economy must establish an absence of de jure and de facto government control. Id. The mandatory respondents’ antidumping questionnaire allows a respondent to assert independence from the country-wide entity. All other respondents seeking eligibility for a separate rate must complete a separate rate application that is about thirty pages of responses and attached exhibits. Appellee United States’ Br. at 22. The separate rate for eligible non-mandatory respondents is generally calculated following the statutory method for determining the “all others rate” under § 1673d(c)(5)(A). Transcom, Inc. v. United States, 294 F.3d 1371, 1374 (Fed.Cir.2002); Amanda Foods (Vietnam) Ltd. v. United States, 647 F.Supp.2d 1368, 1379 (Ct. Int’l Trade 2009). As such, Commerce will typically use the weighted average of all mandatory respondents’ rates, excluding any de minimis and AFA rates. Appellee Berwick’s Br. at 15. If all dumping margins established are only either de minimis or AFA rates, Commerce accordingly applies the exception found in § 1673d(c)(5)(B). II. Bestpak is a Chinese exporter of narrow woven ribbons. These are woven ribbons with a width that is less than or equal to 12 centimeters and have finished edges that keep the fabric from unraveling or fraying. On August 6, 2009, Commerce initiated an antidumping investigation of narrow woven ribbons from China and Taiwan for the period spanning January 1 to June 30, 2009. See Narrow Woven Ribbons with Woven Selvedge from the People’s Republic of China and Taiwan, 74 Fed. Reg. 39,291, 39,292 (Aug. 6, 2009). Commerce began its investigation by issuing quantity and value" }, { "docid": "5205768", "title": "", "text": "it the PRC-wide rate — a rate based on adverse facts available — because the AT & M entity cooperated with Commerce’s investi gation. See AT & M Comments at 8-10. But Commerce did not apply adverse facts available to AT & M, Commerce rather found that AT & M had not rebutted the presumption of state control and assigned it the PRC-wide rate. “These are two distinct legal concepts: a separate AFA rate applies to a respondent who has received a separate rate but has otherwise failed to cooperate fully whereas the PRC-wide rate applies to a respondent who has not received a separate rate.” Watanabe Group v. United States, 34 CIT —, —, Slip Op. 10-139 at 9 n. 8, 2010 WL 5371606 (2010), citing Since Hardware (Guangzhou) Co. v. United States, 34 CIT-, Slip Op. 10-108 at 23, 2010 WL 3982277 (Sep. 27, 2010). To the extent AT & M suggests that Commerce may never apply adverse facts available (or, for that matter, facts available) in calculating a PRC-wide rate, its references do not support the proposition. AT & M also alleges that because it was not found to be separate from the PRC government and because it cooperated in the proceedings, the PRC-wide entity should be considered cooperative and, therefore, application of the adverse-facts-calculated PRC-wide rate was in error. See AT & M Comments at 10-11. The defendant argues AT & M’s argument does not take into account that 13 other PRC-wide companies failed to cooperate, Def.’s Resp. at 9, quoting RR2 at 22, but the rejoinder is inadequate; rather, “Commerce’s permissible determination that [a respondent] is part of the PRC-wide entity means that inquiring into [that respondent]^ separate sales behavior ceases to be meaningful.” Watanabe, Slip Op. 10-139 at 8. “[A]s losing all entitlement to an individualized inquiry appears to be a necessary consequence of the way in which Commerce applies the presumption of gov -■rnment control. applying a country vide AFA. rate without individualized .find .-.--..-.\"'i - ' * . from applying such a countrywide AFA rate-without individualized corroboration.” Jiangsu Ghangbao Steel Tube Co.," }, { "docid": "1496057", "title": "", "text": "[separate rate certification] or Section A responses specific to government control of its export activities[.]” Remand Results at 14-15. Accordingly, in compliance with the court’s order and because Commerce was unable to point to any relevant record evidence related to government control, Commerce properly determined Golden Bird to be eligible for a separate rate. See id. at 14-17. FGPA contends that Commerce should have found Golden Bird’s separate rate information deficient, essentially reiterating its prior position that Golden Bird should be assigned the PRC-wide rate. FGPA Cmts. at 3, attach. 1 at 7-11. As Commerce correctly notes, FGPA’s line of reasoning “largely mirror[s]” Commerce’s argument in the original I&D Memo, Def.’s Resp. to Cmts. Regarding Remand Redetermination 7, ECF No. 96 (“Gov’t Resp.”), which the court previously rejected, FGPA, 121 F.Supp.3d at 1325-27, and declines to reconsider. The evidence on the record calls into question only sales information, and “Commerce cannot ignore a party’s separate rate information solely because it selects AFA due to defects related to sales data.” Id. at 1328. Accordingly, Com merce’s determination that Golden Bird is entitled to a separate rate is sustained. Commerce assigned Golden Bird a separate rate of $2.24/kg, which is the highest rate of any Xinboda transaction during the POR. Remand Results at 6. Normally, when calculating a separate rate, “accuracy and fairness must be Commerce’s primary objectives.” Albemarle Corp. & Subsidiaries v. United States, 821 F.3d 1345, 1354 (Fed.Cir.2016). In selecting an AFA rate, however, “Commerce must balance the statutory objectives of finding an accurate margin and inducing compliance, rather than creating an overly punitive result.” Timken Co. v. United States, 354 F.3d 1334, 1345 (Fed.Cir.2004). Recently, the Federal Circuit affirmed Commerce’s use of one mandatory respondent’s highest transaction-specific margin from the relevant POR as a total AFA rate for another mandatory respondent. Nan Ya Plastics Corp. v. United States, 810 F.3d 1333, 1345.(Fed.Cir.2016) (“Nan Ya”). . the instant case, Commerce based Golden Bird’s total AFA rate on Xinboda’s highest-transaction rate, reasoning that “Golden Bird should ‘not obtain a more favorable result by failing to cooperate than if it had cooperated" }, { "docid": "1496049", "title": "", "text": "$4.71/kg as Golden Bird’s total AFA rate. Golden Bird appealed, and the court upheld Commerce’s decision to select total AFA for Golden Bird. FGPA, 121 F.Supp.3d at 1320, 1327. The court, however, rejected Commerce’s selection of the PRC-wide rate as Golden Bird’s total AFA rate because Commerce had failed to make a finding that Golden Bird’s separate rate certification was deficient or unreliable. Id. at 1328. On remand, Commerce found, under protest, Golden Bird eligible for a separate rate. Remand Results at 14. Commerce reiterated its position that “the severity of Golden Bird’s failure to cooperate and the centrality of the deficient response to the calculation of a dumping margin” sufficiently call into question the integrity of Golden Bird’s information regarding its operation as a separate entity. Id. at 16 (quoting FGPA, 121 F.Supp.3d at 1326). Commerce, however, refused to make a specific finding regarding the deficiency of Golden Bird’s separate rate information because it reasoned that such a finding could be reached only by “follow[ing] the same logic that the Department applied [previously] and [which] the Court rejected.” H. at 16. Commerce ultimately assigned Golden Bird a total AFA rate of $2.24/kg. Id. at 6. That margin represents Xinboda’s highest transaction-specific margin from the instant review. Commerce selected such a rate by reasoning that “Golden Bird should ‘not obtain a more favorable result by failing to cooperate than if it had cooperated fully.’ ” Id (quoting Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc. No. 103-316, vol. 1, at 870 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4199 (“SAA”)). Golden Bird does not object to the assignment of a total AFA rate based on Xinboda’s highest transaction-specific margin from the POR. Cmts. on Commerce Dep’t’s Final Results of Redetermination Pursuant to Remand 3, ECF No. 90 (“Golden Bird & QXF Cmts.”). The Fresh Garlic Producers Association, Christopher Ranch L.L.C., The Garlic Company, Valley Garlic, and Vessey and Company, Inc. (collectively, “FGPA”) do oppose Commerce’s separate rate determination in the Remand Results. Pis.’ Cmts. on Dep’t’s Rede-termination Pursuant to Ct. Order 2, ECF No. 91 (“FGPA Cmts.”). FGPA argues" }, { "docid": "19192642", "title": "", "text": "may rely on information from “(1) the petition, (2) a final determination in the investigation ..., (3) any previous review ... or determination ..., or (4) any other information placed on the record.” 19 U.S.C. § 1677e(b). When relying on secondary information not obtained during the review, Commerce “shall, to the extent practicable, corroborate that information from independent sources that are reasonably at [its] disposal.” Id. § 1677e(c). The AFA rate should “be a reasonably accurate estimate of the respondent’s actual rate, albeit with some built-in increase intended as a deterrent to noncompliance,” not a punitive or unreasonably high rate “with no relationship to the respondent’s actual dumping margin.” F.lli De Ceceo Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed.Cir.2000). Because an AFA rate must bear some relationship to the respondent’s actual dumping margin, Commerce’s ability to apply the PRC-wide rate as a respondent’s AFA rate is limited. See Gerber Food (Yunnan) Co. v. United States, 387 F.Supp.2d 1270, 1287-88 (CIT 2005). At present, Commerce applies a presumption of state control for a respondent in a nonmarket economy (“NME”) country such as the PRC. See Sigma Corp. v. United States, 117 F.3d 1401, 1404-05 (Fed.Cir.1997); Shandong Huanri (Group) Gen. Co. v. United States, 493 F.Supp.2d 1353, 1357 (CIT 2007). Under this presumption, a respondent receives the NME country-wide rate unless it affirmatively demonstrates an absence of de jure and de facto government control with respect to exports and is therefore entitled to a separate, company-specific rate. See Sigma, 117 F.3d at 1405. Because the PRC-wide rate thus presumes government control, Commerce may not apply the PRC-wide rate as the AFA rate where AFA is warranted for sales and FOP data, but the respondent has established inde pendence from government control. Gerber, 387 F.Supp.2d at 1287 (citing Shandong Huarong Gen. Group Corp. v. United States, 27 CIT 1568 (2003)). In such a situation, there is no connection between the PRC-wide rate and an estimate of the respondent’s actual rate. See id. Accordingly, Commerce could not apply the PRC-wide rate to Taifa based on Taifa’s failures" }, { "docid": "19192643", "title": "", "text": "state control for a respondent in a nonmarket economy (“NME”) country such as the PRC. See Sigma Corp. v. United States, 117 F.3d 1401, 1404-05 (Fed.Cir.1997); Shandong Huanri (Group) Gen. Co. v. United States, 493 F.Supp.2d 1353, 1357 (CIT 2007). Under this presumption, a respondent receives the NME country-wide rate unless it affirmatively demonstrates an absence of de jure and de facto government control with respect to exports and is therefore entitled to a separate, company-specific rate. See Sigma, 117 F.3d at 1405. Because the PRC-wide rate thus presumes government control, Commerce may not apply the PRC-wide rate as the AFA rate where AFA is warranted for sales and FOP data, but the respondent has established inde pendence from government control. Gerber, 387 F.Supp.2d at 1287 (citing Shandong Huarong Gen. Group Corp. v. United States, 27 CIT 1568 (2003)). In such a situation, there is no connection between the PRC-wide rate and an estimate of the respondent’s actual rate. See id. Accordingly, Commerce could not apply the PRC-wide rate to Taifa based on Taifa’s failures to report FOP data for wheels or attempts to avoid producing requested documents regarding sales and production at verification alone. Commerce could apply the PRC-wide rate only if Taifa did not establish its de jure and de facto independence from government control. Here, Commerce’s Preliminary Results found an absence of de jure and de facto government control, Preliminary Results, 73 Fed.Reg. at 2219, and Commerce’s verification report “noted no indication of government control” (Def.’s App. 88). Nevertheless, Commerce’s Final Results applied the PRC-wide rate because Commerce could not verify documents regarding Taifa’s ownership structure. See Final Results, 73 Fed.Reg. at 43,686; Issues and Decision Memorandum at 4. Specifically, Commerce found that some documents listed the Yinzhu Town Government as the holder of 51.42% of Taifa’s shares, but all other documents identified a collective called Qingdao Taifa Group Co. as the owner of those shares. (See Def.’s App. 83-87.) The documents that Taifa offered to show that the shares were divested in 2003 were unregistered. (Id. at 85-86.) Determining that Taifa failed to keep and maintain" }, { "docid": "2979487", "title": "", "text": "it was not \"notice of initiation of [the] review” under the regulation. See Transcom, 182 F.3d at 880. . Lifestyle cites Elkem for the principle that Commerce may not violate its timing deadlines. PL’s Br. at 20-21; Elkem Metals Co. v. United States, 26 CIT 234, 243 (2002). In Elkem, however, the International Trade Commission promised a hearing as a matter of regulation and then revoked that right. Elkem, 26 CIT at 243. Here, in contrast, Commerce merely delayed its full notification rather than failing to give notice entirely. .See infra note 15. . Commerce presumes state control unless the contrary is demonstrated. Based on the parties’ arguments the court need not resolve here whether the presumption of state control is supported. See Qingdao Taifa Grp. Co. v. United States, Slip Op. 10-126, 2010 WL 4704464, at *3 (CIT Nov. 12 2010) (\"Taifa III\"). . At oral argument, the Government clarified that \"[[Confidential Data Deleted]] transaction specific margins from Yihua Timber during this period of review” were used to corroborate Orient's rate. Oral Arg. Tr., 42, Nov. 16, 2010. During the period of review, Yihua Timber exported [[Confidential Data Deleted]] to the United States. Mem. in Supp. of Consol. PL’s Mot. for J. on the Agency R. Under Rule 56.2 Filed by Guangdong Yihua Timber Indus. Co., Ltd. (\"Consol. PL’s App.”) Tab 1, at 2. The Government has not stated what percentage of Yihua Timber’s sales were used to corroborate Orient’s rate and what the significance of such a percentage would be. See Gallant Ocean (Thai.) Co. v. United States, 602 F.3d 1319, 1325 (Fed.Cir.2010) (holding an AFA rate uncorroborated when Commerce failed to \"show that a small percentage of the mandatory respondents' transactions represented a reasonably accurate estimate of [non-participating respondent’s] actual dumping margin”). .Lifestyle claims that Commerce de facto revoked Orient’s separate rate status by assigning Orient the PRC-wide rate. PL's Br. at 40. Once a separate rate status determination is made, Commerce may not apply the PRC-wide rate, as such, to an entity. Qingdao Taifa Grp. Co. v. United States, 637 F.Supp.2d 1231, 1241 (CIT 2009) (“Taifa" }, { "docid": "5205769", "title": "", "text": "do not support the proposition. AT & M also alleges that because it was not found to be separate from the PRC government and because it cooperated in the proceedings, the PRC-wide entity should be considered cooperative and, therefore, application of the adverse-facts-calculated PRC-wide rate was in error. See AT & M Comments at 10-11. The defendant argues AT & M’s argument does not take into account that 13 other PRC-wide companies failed to cooperate, Def.’s Resp. at 9, quoting RR2 at 22, but the rejoinder is inadequate; rather, “Commerce’s permissible determination that [a respondent] is part of the PRC-wide entity means that inquiring into [that respondent]^ separate sales behavior ceases to be meaningful.” Watanabe, Slip Op. 10-139 at 8. “[A]s losing all entitlement to an individualized inquiry appears to be a necessary consequence of the way in which Commerce applies the presumption of gov -■rnment control. applying a country vide AFA. rate without individualized .find .-.--..-.\"'i - ' * . from applying such a countrywide AFA rate-without individualized corroboration.” Jiangsu Ghangbao Steel Tube Co., Ltd. v. United States, 36 CIT —, —, 884 F.Supp.2d 1295, 1312 n. 21 (2012), referencing Watanabe, Slip Op. 10-139 at 8. For that réason, this court is unable to find Commerce’s application of the PRC-wide rate to the AT & M entity on remand improper. C. Presumption of State Control and Countervailing Duties . Finally, AT & M makes a sweeping objection to the presumption of control applied to NME countries, arguing that Commerce should have eliminated its separate rates practice altogether in light of its application of countervailing duties to the PRC- It may be worth setting forth the full argument at. length, for future reference: The presumptions underlying the separate rates approach are no longer valid. Indeed, the presumption is backwards, as is apparent from the Department’s own words and practice — the only presumption that is supportable is the presumption that [PRC] companies are not controlled by the [PRC] government [¶]... ] but that presumption can be overcome by facts on the record. The Department’s presumption that “all firms within a" }, { "docid": "20908624", "title": "", "text": "4829947, at *14 (C.I.T. Oct. 12, 2011) (holding that total AFA was appropriate where deficient responses concerned a substantial portion of a party’s production inputs); Shanghai Taoen Int’l Trading Co. v. United States, 29 C.I.T. 189, 199 n. 13, 360 F.Supp.2d 1339, 1348 n. 13 (2005) (upholding selection of total AFA where inconsistencies concerned the identity of a party’s suppliers). Thus, Commerce’s decision to select total 'AFA is supported by substantial evidence’ D. Selection of the PRC-Wide Rate As discussed above, Commerce’s selection of total AFA is supported by substantial evidence; Commerce’s.further selection of the PRC-wide rate, however, is not. Commerce improperly ignored Golden Bird’s Separate Rate Certification in selecting the PRC-wide rate as Golden Bird’s total AFA rate. 1. Commerce’s Calculation In an AD review of products from an NME country, Commerce employs a presumption of state control. See Huaiyin Foreign Trade Corp. v. United States, 322 F.3d 1369, 1372 (Fed.Cir.2003). Unless a party rebuts the presumption by establishing de jure and de facto independence from the NME country’s government, that party is assigned a countrywide AD duty rate. Sigma Corp. v. United States, 117 F.3d 1401, 1405 (Fed.Cir.1997); Peer Bearing Co.-Changshan v. United States, 82 C.I.T. 1307, 1309, 587 F.Supp.2d 1319, 1324 (2008). Once a party has demonstrated its independence and been granted a separate rate in one segment of the proceeding, it can demonstrate its separate rate status eligibility by filing a separate rate certification stating that it continues to meet the criteria for obtaining a separate rate. See Initiation Notice, 77 Fed.Reg. at 77,018-19. Golden Bird filed a separate rate certification, which Commerce determined was sufficient in the Preliminary Results. See Preliminary I & D Memo at 6, 8. Commerce thus had previously determined that Golden Bird was entitled to a separate rate and preliminarily determined that Golden Bird continued to meet the criteria for obtaining a separate rate. See .id. at 6. The government argues that because of the pervasive nature of Golden Bird’s failure, to act to the best of its ability, Commerce could not rely on the information in Golden Bird’s Separate Rate" }, { "docid": "20584541", "title": "", "text": "that have demonstrated their eligibility for a separate rate in certain segments of this proceeding has little bearing on the rate applied to the China-wide entity.” Government’s Br-1647, at 67; Government’s Br.-1514, at 69. Indeed, as the CIT found, “[i]n the [non-market economy] context, ... the inference that the countrywide entity as a whole may be dumping at margins significantly above the cooperating separate rate market participants is not unreasonable.” Ad Hoc Shrimp II, 992 F.Supp.2d at 1300. Furthermore, this court has clarified that AFA rates can be significantly higher than rates calculated for cooperating respondents, see, e.g., KYD, 607 F.3d at 765-66 (affirming application of petition rate many times higher than those of cooperating respondents), particularly since such rates should reflect an “inference that is adverse to the interests of that party,” 19 U.S.C. § 1677e(b). Indeed, “Commerce need not select, as the AFA rate, a rate that represents the typical dumping margin for the industry in question.” KYD, 607 F.3d at 765-66. In addition, Hilltop’s argument that Commerce should rely on the rates assigned to mandatory respondents in the prior reviews ignores that these rates include those calculated for Hilltop itself during the time it concealed Ocean King, thus calling into question their reliability. Furthermore, Hilltop’s claim that Commerce should have considered Red Garden’s overall margin of zero would conflict with the stated purpose of AFA, which ensures an uncooperative “party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.” Statement of Administrative Action accompanying the Uruguay Round Agreements Act,'H.R.Rep. No. 103316, vol. 1, at 870 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4199. Indeed, as the Government states, “[t]he point of corroboration is to ensure that an adverse rate is relevant and probative, not to assign a rate to an uncooperative respondent as if it had cooperated.” Government’s Br.-1647, at 71; Government’s Br.-1514, at 72; see De Ceceo, 216 F.3d at 1032 (explaining that an AFA rate should be “a reasonably accurate estimate of the respondent’s actual rate, [here, the China-wide entity,] albeit with some built-in increase intended as a" } ]

[ { "docid": "5358080", "title": "", "text": "interrogate suspects and when they could not. The bright line rule is for the benefit of the courts as well. I concur in the judgment of the court since I believe the admission of the confession was harmless. The statute under which defendant was convicted makes it a crime to mail a letter threatening the President or Vice President of the United States. The handwriting expert testified that “it’s a strong probability which is virtually certain that he [defendant] wrote it.” The fingerprint expert testified that 22 of the 27 fingerprints on the letter were defendant’s. Further, Hall’s name appears as one of the signatures to the letter and his first name in the contents of the letter. “[Ajbsent the improperly admitted, confession, it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty.” Wolf, 879 F.2d at 1324. RYAN, Circuit Judge, concurring separately. I concur in the judgment affirming the defendant’s conviction and write separately to emphasize that Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), and United States v. Wolf, 879 F.2d 1320 (6th Cir.1989), are totally distinguishable from this case and, consequently, the rules announced in those cases are inapplicable here. I. The rule of Roberson is that an accused under arrest and in police custody for a serious offense, who, after being warned under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), invokes a fifth amendment right to counsel by expressing a desire to deal with the police only through counsel, may not be interrogated further until counsel has been made available to him unless he initiates further communication with the police. If he is further interrogated before counsel has been made available to him, there is a presumption that “any subsequent waiver [of the Miranda right to remain silent] has come at the authorities’ behest, and not at the suspect’s own instigation, and is itself the product of the ‘inherently compelling pressures’ [of the custodial interrogation] and not the purely voluntary choice of the suspect.” Arizona v. Roberson, 486" } ]

[ { "docid": "9328710", "title": "", "text": "presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the ‘inherently compelling pressures’ and not the purely voluntary choice of the suspect.” Arizona v. Roberson, 486 U.S. 675, 681, 108 S.Ct. 2093, 2097-98, 100 L.Ed.2d 704 (1988) (citation omitted). The undisputed facts in the case before us fulfill the two criteria for applying the Edwards bright-line rule: Kelsey invoked his right to deal with the police through an attorney, and the police initiated questioning after Kelsey had requested a lawyer and before he had been provided one. In an effort to avoid Edwards, the Government argues that this case is distinguishable because Kelsey requested counsel before the police began to question him and before he was read his Miranda rights. In support of this argument, the Government cites Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980), for the proposition that the Miranda safeguards do not come into play until a suspect is subjected to interrogation or its functional equiva lent. Under the governing cases, however, the fact that Kelsey invoked his right to counsel before the police were required to inform him of that right is irrelevant. The Supreme Court has stated that the rule in Edwards is triggered by “some statement that can reasonably be construed to be expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.” McNeil v. Wisconsin, — U.S. —, 111 S.Ct. 2204, 2209, 115 L.Ed.2d 158 (1991). It is clear from the exchange between Kelsey and the police described above that the police intended to question Kelsey at some point at his home, and that the police understood Kelsey to be invoking his right to counsel during questioning. Recognizing the import of Kelsey’s request, the police stated that if they allowed him to see his lawyer they could not question him further. We thus conclude that Kelsey’s request for counsel was sufficient to bring this case within the ambit of Edwards. In so" }, { "docid": "10341222", "title": "", "text": "against him by the state, we do not find their admission into evidence harmless. Finally, our decision is not altered by the fact that, after requesting counsel, Abela was read his Miranda rights, signed a waiver of them, and proceeded to make a statement at the hospital and at the police station (where, although not re-read his Miranda rights, he was asked whether he “remembered” them). As just discussed, when a suspect invokes his Fifth Amendment right to counsel, police questioning must cease until counsel is present. A suspect may waive his Fifth Amendment right to counsel and the Edwards protections after counsel has been requested, but only if the suspect himself has initiated the conversation or discussions with the authorities. Minnick, 498 U.S. at 155-56, 111 S.Ct. 486. The evidence here shows that Abela did not initiate conversation with the police. Rather, he gave a statement only after Sergeant McCabe returned to the room, read him his Miranda rights, and resumed questioning. In Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), the Supreme Court explained that the bright-line, prophylactic Edwards rule protects against the inherently compelling pressures of custodial interrogation by creating a presumption that any subsequent waiver of the right to counsel at the authorities’ behest was coercive and not purely voluntary. Id. at 685-86, 108 S.Ct. 2093. Moreover, the Supreme Court expressly rejected the contention that the fresh issuance of Miranda warnings, after the suspect requested counsel, would overcome the pressures created by the custodial nature of the situation. Id. at 686, 108 S.Ct. 2093; see also United States v. Hall, 905 F.2d 959, 961, 964-65, (6th Cir.1990), cert. denied, 501 U.S. 1233, 111 S.Ct. 2858, 115 L.Ed.2d 1025 (1991) (holding that once an accused expresses a desire to deal with police only through counsel, a presumption is created that any subsequent waiver of the right to counsel at the authorities’ behest is coercive and not purely voluntary; invoking Roberson in rejecting the proposition that “a fresh set of Miranda warnings would ‘reassure’ a suspect who had been denied counsel” that “his" }, { "docid": "5262219", "title": "", "text": "id. at 480, 101 S.Ct. at 1882-83. In reversing the conviction, the Supreme Court held that once a suspect invokes his right to counsel, “a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Id. at 484, 101 S.Ct. at 1885. The Court further held that once a suspect invokes the right, there can be no further police-initiated interrogation “until counsel has been made available to him, unless the [suspect] himself initiates further communication.” Id. at 484-85, 101 S.Ct. at 1885; see also Minnick v. Mississippi, 498 U.S. 146, 153, 111 S.Ct. 486, 491, 112 L.Ed.2d 489 (1990) (holding that after counsel is requested, there can be no further police-initiated interrogation without counsel being present). Thus, once a suspect has asked for the assistance of counsel, “it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the ‘inherently compelling pressures’ [of custodial interrogation] and not the purely voluntary choice of the suspect.” Arizona v. Roberson, 486 U.S. 675, 681, 108 S.Ct. 2093, 2098, 100 L.Ed.2d 704 (1988); cf. Michigan v. Mosley, 423 U.S. 96, 104-06, 96 S.Ct. 321, 326-27, 46 L.Ed.2d 313 (1975) (finding no Miranda violation when the police resumed questioning after the suspect’s invocation of his right to cut off questioning was “scrupulously honored”). The Edwards protection is not offense-specific. Rather, a suspect who has requested the presence of counsel cannot be questioned concerning any crime, not just the one that put him in custody. See Roberson, 486 U.S. at 683-84, 108 S.Ct. at 2099. Further, the Edwards presumption focuses on the suspect’s state of mind, not the police’s. “[C]ustodial interrogation must be conducted pursuant to established procedures, and those procedures in turn must enable an officer who proposes to initiate an interrogation to determine whether the suspect has previously requested counsel.” Id. at 687, 108 S.Ct. at 2101. Thus, officers who interrogate a suspect after the suspect has invoked his right to" }, { "docid": "1391947", "title": "", "text": "On October 8, five days after his meeting with Polk, Howard confessed to FBI agent Battle after signing a Miranda waiver. A week later, on October 16, Howard again waived his Miranda rights and confessed to Lieutenant Hitchins, a South Carolina sheriffs deputy. Howard’s lawyer was not notified about any of these meetings, even though Howard had invoked his right to counsel only a few days earlier, on October 2. At Howard’s murder trial the state introduced redacted versions of Howard’s confessions to the FBI and the deputy. The ultimate question is whether Edwards makes Howard’s confessions to the FBI and the deputy sheriff inadmissible. Edwards established a bright line rule: once a suspect in custody invokes his right to counsel, he cannot be questioned again without counsel present “unless the [suspect] himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981). The rule of Edwards supplements Miranda with added protection for exercising the Fifth Amendment privilege against self-incrimination. Before a jailed suspect has asked for a lawyer, he receives only the basic Miranda protection, the irrebuttable presumption that any unwarned statement to the police is involuntary (for Miranda purposes) and therefore inadmissible. Once the suspect invokes the right to counsel, however, he receives the added Edwards protection: if a suspect believes that he is not capable of undergoing [custodial] questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the “inherently compelling pressures” and not the purely voluntary choice of the suspect. Arizona v. Roberson, 486 U.S. 675, 681, 108 S.Ct. 2093, 2097-98, 100 L.Ed.2d 704 (1988). Again, once a suspect asserts the right to counsel, police-initiated reinterrogation without counsel is prohibited. Any confession resulting- from police-initiated reinterrogation is barred by Edwards even if the suspect waived his Miranda rights and even if the confession was voluntary under traditional due process analysis. See id. at 686, 108 S.Ct. at 2100; see also" }, { "docid": "1466267", "title": "", "text": "authorities’ behest is coercive and not purely voluntary and relying on Roberson to reject the proposition that “a fresh set of Miranda warnings would reassure a suspect who had been denied counsel that his rights would remain untrammeled”). II. Because we hold that it was error to admit Van Hook’s statements, we must “review[] the remainder of the evidence against [him] to determine whether the admission of the confession was harmless beyond a reasonable doubt.” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). A confession can be “the most probative and damaging evidence that can be admitted against [a defendant].” Id. at 296, 111 S.Ct. 1246 (internal quotation marks and citation omitted). In his authoritative concurrence in Brecht v. Abrahamson, 507 U.S. 619, 641, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), Justice Stevens adopted the applicable standard of harmless error from Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), which requires that if “one cannot say, with fair assurance, ... that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.” Because Van Hook’s statements were self-incriminating and among the most significant evidence marshaled against him by the state, we do not find their admission into evidence harmless. Because we “cannot say, with fair assurance, ... that the judgment was not substantially swayed by the error” of admitting Van Hook’s unconstitutionally obtained statements, we find that the constitutional errors in this case are not harmless, and accordingly, we grant Van Hook’s request for habeas relief on this ground. All other issues are pretermitted. We reverse the judgment of the district court and remand with instructions that Van Hook be released from state custody if not retried by the State of Ohio within 180 days of the final federal court judgment in this case. Accordingly, it is so ordered. . Van Hook's habeas petition was filed prior to passage of the Anti-terrorism and Effective Death Penalty Act, and we, therefore, review his claims under the law as it" }, { "docid": "5358070", "title": "", "text": "The Court AFFIRMS the District Court. In Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981), the Supreme Court held: [An] accused, ..., having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police. In Arizona v. Roberson, the Supreme Court held that this prophylactic rule applies when police-initiated interrogation following a suspect’s request for counsel occurs in the context of an unrelated criminal investigation. 486 U.S. at 682, 108 S.Ct. at 2098. Defendant Hall contends that the circumstances which surround his admission following questioning by Decieco and Parker are identical to that of Roberson and therefore, his conviction was in violation of his fifth amendment right against self-incrimination. On this I cannot agree. The Supreme Court in Roberson explained that the Edwards rule protects against the inherently compelling pressures of custodial interrogation suspects who feel incapable of undergoing such questioning without the advice of counsel. A presumption is created that any subsequent waiver of the right to counsel at the authorities behest was coercive and not purely voluntary. Moreover, it provides clear and unequivocal guidelines that inform the police and prosecutors with specificity what they may do in conducting custodial interrogation, and that inform the courts under what circumstances statements obtained during such interrogation are not admissible. 486 U.S. at 680-682, 108 S.Ct. at 2097-2098. Roberson was concerned with coercive custodial interrogation by authorities where the suspect has not had the ability to speak to counsel, because, “to a suspect who has indicated his inability to cope with the pressures of custodial interrogation by requesting counsel, any further interrogation without counsel having been provided will surely exacerbate whatever compulsion to speak the suspect may be feeling.” 486 U.S. at 686, 108 S.Ct. at 2100. Thus, the Supreme Court disagreed with the contention that a fresh set of Miranda warnings would “reassure” a suspect who had- been denied counsel would have his rights" }, { "docid": "7750199", "title": "", "text": "subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect’s statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards.” McNeil v. Wisconsin, 501 U.S. 171, 177, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). “This is ‘designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.’” Id. (citing Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990)). See Minnick v. Mississippi 498 U.S. 146, 150, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990) (citing Harvey, 494 U.S. at 350, 110 S.Ct. 1176). Moreover, unlike an accused’s Sixth Amendment right to counsel, the Edwards rule is not offense specific. Id.; Arizona v. Roberson, 486 U.S. 675, 685, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). “Once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present.” McNeil, 501 U.S. at 177, 111 S.Ct. 2204. The notion that custodial interrogations, in and of themselves, have inherently coercive effects on the accused is the essential predicate to the prescriptions contained in the Miranda-Edwards line of cases requiring counsel to be present, if requested, when interrogation occurs in a custodial setting. See Roberson, 486 U.S. at 685, 108 S.Ct. 2093 (Fifth Amendment right against compelled self-incrimination “is protected by the prophylaxis of having an attorney present to counteract the inherent pressures of custodial interrogation,”); Alston, 34 F.3d at 1243-44. Thus, in order to implicate the Miranda-Edwards right to counsel prophylaxis, both a custodial situation and official interrogation are required. Absent either a custodial situation or official interrogation, Miranda and Edwards are not implicated. See Roberson, 486 U.S. at 682, 108 S.Ct. 2093 (.Edwards applies “after a person in custody has expressed his desire to deal with the police only through counsel,____”); Michigan v. Jackson, 475 U.S. 625, 626, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986) (“In Edwards, ..., we held that an accused" }, { "docid": "1391890", "title": "", "text": "(rejecting “application of the ‘fruit of the poisonous tree’ doctrine to physical evidence discovered as the result of a statement obtained in violation of Miranda”); Correll v. Thompson, 63 F.3d 1279, 1289-91 (4th Cir.1995) (refusing to apply “tainted fruits” doctrine to a third confession obtained as a result of'two earlier confessions obtained in violation of Edwards), cert. denied, — U.S. -, 116 S.Ct. 688, 133 L.Ed.2d 593 (1996). An Edwards violation, like a Miranda violation, is- not itself a constitutional violation. In Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), the Supreme Court explained that the prophylactic protections that the Miranda warnings provide to counteract the “inherently compelling pressures” of custodial interrogation and to “permit a full opportunity to exercise the privilege against self-incrimination,” are implemented by the application of the Edwards corollary that if a suspect believes that he is not capable of undergoing such questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product ,of the “ ‘inherently compelling pressures’ and not the purely voluntary choice of the suspect.” Id. at 681, 108 S.Ct. at 2097-98 (citations and quotations omitted); see also id. at 682, 108 S.Ct. at 2098 (“The Edwards rule ... serves the purpose of providing, ‘clear and unequivocal’ guidelines to the law enforcement profession.”); id. at 688, 108 S.Ct. at 2101-02 (Kennedy, J., dissenting) (noting that “the rule of Edwards is our rule, not a constitutional command”); Comil, 63 F.3d at 1290 (concluding that “[a] breach of the rule established in Edwards is [ ] a technical violation of Miranda, not a Fifth Amendment violation.”). Accordingly, even if we were to accept Howard’s argument that his statement to Polk, including his request to speak to the FBI, was obtained in violation of Edwards, the “fruit of the poisonous tree” doctrine would not bar-admission of Howard’s confessions to Agent Battle and Lieutenant Hitch-ins. Only if Howard could show that his statement to Polk was obtained in violation of his Fifth" }, { "docid": "5358069", "title": "", "text": "release. Hall appeals arguing that his statements made to Agents Decicco and Parker were in violation of Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), which also has recently been followed in United States v. Wolf, 879 F.2d 1320 (6th Cir.1989). This appeal likewise centers around whether the admission of defendant’s statement could invoke harmless error. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). For the foregoing reasons, I find that Hall’s statements were not in violation of Roberson. Since Roberson has not been invoked, a waiver could be obtained. The District Court properly found that defendant Hall voluntarily waived his Miranda rights, and appellant has not brought that issue to this appeal. Therefore, neither the issue of whether a valid waiver was obtained nor harmless error needs to be addressed. However, it should be noted that if this Court were to address the issue of harmless error, I would have found that Hall’s statements would not have been harmless error as found in Chapman. The Court AFFIRMS the District Court. In Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981), the Supreme Court held: [An] accused, ..., having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police. In Arizona v. Roberson, the Supreme Court held that this prophylactic rule applies when police-initiated interrogation following a suspect’s request for counsel occurs in the context of an unrelated criminal investigation. 486 U.S. at 682, 108 S.Ct. at 2098. Defendant Hall contends that the circumstances which surround his admission following questioning by Decieco and Parker are identical to that of Roberson and therefore, his conviction was in violation of his fifth amendment right against self-incrimination. On this I cannot agree. The Supreme Court in Roberson explained that the Edwards rule protects against the inherently compelling pressures of custodial interrogation suspects who feel incapable of" }, { "docid": "9328709", "title": "", "text": "Supreme Court established a bright-line rule that when a suspect has “expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” (Emphasis added). To implement this rule, the Court held that any statements a suspect makes after requesting an attorney and before being provided with one are not admissible unless it is clear that the suspect, and not the police, initiated the dialogue with authorities. Id. at 485-87, 101 S.Ct. at 1885-86. In reiterating and applying this rule, the Supreme Court has stated: “Thus, the prophylactic protections that the Miranda warnings provide to counteract the ‘inherently compelling pressures’ of custodial interrogation and to ‘permit a full opportunity to exercise the privilege against self-incrimination,’ are implemented by the application of the Edwards corollary that if a suspect believes that he is not capable of undergoing such questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the ‘inherently compelling pressures’ and not the purely voluntary choice of the suspect.” Arizona v. Roberson, 486 U.S. 675, 681, 108 S.Ct. 2093, 2097-98, 100 L.Ed.2d 704 (1988) (citation omitted). The undisputed facts in the case before us fulfill the two criteria for applying the Edwards bright-line rule: Kelsey invoked his right to deal with the police through an attorney, and the police initiated questioning after Kelsey had requested a lawyer and before he had been provided one. In an effort to avoid Edwards, the Government argues that this case is distinguishable because Kelsey requested counsel before the police began to question him and before he was read his Miranda rights. In support of this argument, the Government cites Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980), for the proposition that the Miranda safeguards do not come into play until a suspect is" }, { "docid": "1391948", "title": "", "text": "a jailed suspect has asked for a lawyer, he receives only the basic Miranda protection, the irrebuttable presumption that any unwarned statement to the police is involuntary (for Miranda purposes) and therefore inadmissible. Once the suspect invokes the right to counsel, however, he receives the added Edwards protection: if a suspect believes that he is not capable of undergoing [custodial] questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the “inherently compelling pressures” and not the purely voluntary choice of the suspect. Arizona v. Roberson, 486 U.S. 675, 681, 108 S.Ct. 2093, 2097-98, 100 L.Ed.2d 704 (1988). Again, once a suspect asserts the right to counsel, police-initiated reinterrogation without counsel is prohibited. Any confession resulting- from police-initiated reinterrogation is barred by Edwards even if the suspect waived his Miranda rights and even if the confession was voluntary under traditional due process analysis. See id. at 686, 108 S.Ct. at 2100; see also Minnick v. Mississippi 498 U.S. 146, 151, 111 S.Ct. 486, 489-90, 112 L.Ed.2d 489 (1990). In this case, we know little about what Howard was thinking as he sat in the Buncombe County Jail. But we do know one thing: he invoked his right to counsel on October 2, 1985, and he flatly refused to talk to the police. Thus, unless Howard himself initiated further discussions with the authorities, the confessions he made in response to questioning by his probation officer, the FBI, and the deputy are all inadmissible. That is the clear command of Edwards. The first question is whether Howard initiated the discussion with his probation officer. The majority disembowels Edwards by dismissing this question as immaterial. As Justice Kennedy, writing for the Court, has explained, “[t]he merit of the Edwards decision lies in the clarity of its command and the certainty of its application.” Minnick, 498 U.S. at 151, 111 S.Ct. at 490. The majority ignores this guidance from the Supreme Court and constructs a complex detour around the clear mandate of" }, { "docid": "1466265", "title": "", "text": "C-1-94-269 (S.D.Ohio Mar. 28, 2002). Therefore, the sole question before us is whether Van Hook reinitiated contact with the po lice through a conversation with his mother. There is much speculation of what Van Hook’s mother said to Detective Davis. Under our reading of Edwards, it is unnecessary to know what transpired in that conversation. It is undisputed that Van Hook himself did not initiate contact with the police: there “is not a scintilla of evidence in the record to show that [Van Hook] initiated further discussion” with police. 39 Ohio St.3d at 266, 530 N.E.2d at 892 (Wright, J., dissenting). Relying on the plain language from Edwards that the accused himself must reinitiate discussions, we agree with Van Hook’s argument that no one but a suspect himself can initiate further discussions with police after counsel has been requested but not yet furnished. Because Van Hook did not initiate the conversation himself, his constitutional rights were violated and the incriminating statements he made in the Florida jail must be suppressed. The evidence here shows that Van Hook did not initiate conversation with the police. Rather, he gave a statement only after Detective Davis told him that he, Davis, had.spoken with his mother, and they “need[ed] to talk.” In Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), the Supreme Court explained that the bright-line, prophylactic Edwards rule protects against the inherently compelling pressures of custodial interrogation by creating a presumption that any subsequent waiver of the right to counsel at the authorities’ behest was coercive and not purely voluntary. Id. at 685-86, 108 S.Ct. 2093. Moreover, the Supreme Court expressly rejected the contention that the fresh issuance of Miranda warnings, after the suspect requested counsel, would overcome the pressures created by the custodial nature of the situation. Id. at 686, 108 S.Ct. 2093; see also United States v. Hall, 905 F.2d 959, 961, 964-65 (6th Cir.1990) (holding that once an accused expresses a desire to deal with police only through counsel, a presumption is created that any subsequent waiver of the right to counsel at the" }, { "docid": "1391889", "title": "", "text": "Howard initiated contact with Polk and then inyoked his right to counsel, triggering his rights under Edwards anew, or Polk initiated contact with Howard after he invoked his right to counsel) because Howard’s subsequent confessions to Agent Battle and Lieutenant Hitchins are not inadmissible “tainted fruits.” The “tainted fruits” doctrine is simply inapplicable absent a constitutional violation. See Oregon v. Elstad, 470 U.S. 298, 308, 105 S.Ct. 1285, 1292-93, 84 L.Ed.2d 222 (1985) (concluding that the “fruit of .the poisonous tree” doctrine did not apply to a suspect’s second statement, made while in custody as a result of unwarned first statement obtained in violation of Miranda, because there was no actual infringement of the suspect’s constitutional rights); Michigan v. Tucker, 417 U.S. 433, 445-46 & n. 19, 94 S.Ct. 2357, 2364-65 & n. 19, 41 L.Ed.2d 182 (1974) (refusing to apply “tainted fruits” doctrine to the testimony of a witness whose identity was discovered as a' result of a statement obtained in violation of Miranda); United States v. Elie, 111 F.3d 1135, 1141 (4th Cir.1997) (rejecting “application of the ‘fruit of the poisonous tree’ doctrine to physical evidence discovered as the result of a statement obtained in violation of Miranda”); Correll v. Thompson, 63 F.3d 1279, 1289-91 (4th Cir.1995) (refusing to apply “tainted fruits” doctrine to a third confession obtained as a result of'two earlier confessions obtained in violation of Edwards), cert. denied, — U.S. -, 116 S.Ct. 688, 133 L.Ed.2d 593 (1996). An Edwards violation, like a Miranda violation, is- not itself a constitutional violation. In Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), the Supreme Court explained that the prophylactic protections that the Miranda warnings provide to counteract the “inherently compelling pressures” of custodial interrogation and to “permit a full opportunity to exercise the privilege against self-incrimination,” are implemented by the application of the Edwards corollary that if a suspect believes that he is not capable of undergoing such questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the" }, { "docid": "5564182", "title": "", "text": "The Supreme Court built on Edtvards in subsequent cases, including in Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), a decision released after Isaacs’ conviction but before his direct appeal was completed. In Roberson, the defendant was arrested at the scene of a just-completed burglary, and indicated to the police that he “wanted a lawyer before answering any questions.” 486 U.S. at 678, 108 S.Ct. at 2096. Three days later, while the defendant was still in custody pursuant to the original arrest, a different police officer interrogated him about a different burglary. Id. The officer conducting the second interrogation was not aware that Roberson had requested the assistance of counsel after he was arrested. Id. The question before the Supreme Court in Roberson was whether the re-initiation by the police of interrogation concerning a separate offense from the one for which the defendant invoked the right to counsel violated Edwards. The Court held that, after a person in custody invokes the right to counsel, the police cannot initiate interrogation, even if it concerns offenses other than ones for which the person is being held. The Court noted that “the prophylactic protections that the Miranda warnings provide to counteract the ‘inherently compelling pressures’ of custodial interrogation and to ‘permit a full opportunity to exercise the privilege against self-incrimination,’ are implemented by the application of the Edwards corollary that if a suspect believes that he is not capable of undergoing such questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the ‘inherently compelling pressures’ and not the purely voluntary choice of the suspect.” 486 U.S. at 681, 108 S.Ct. at 2097 (citations and quotations omitted). The Roberson Court stated that the Miranda and Edwards “bright-line rule[s]” have the benefit of providing “ ‘clear and unequivocal’ guidelines to the law enforcement profession.” Id. at 682, 108 S.Ct. at 2098. The Court then went on to hold that “the bright-line, prophylactic Edwards rule” applies even if" }, { "docid": "1466266", "title": "", "text": "Van Hook did not initiate conversation with the police. Rather, he gave a statement only after Detective Davis told him that he, Davis, had.spoken with his mother, and they “need[ed] to talk.” In Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), the Supreme Court explained that the bright-line, prophylactic Edwards rule protects against the inherently compelling pressures of custodial interrogation by creating a presumption that any subsequent waiver of the right to counsel at the authorities’ behest was coercive and not purely voluntary. Id. at 685-86, 108 S.Ct. 2093. Moreover, the Supreme Court expressly rejected the contention that the fresh issuance of Miranda warnings, after the suspect requested counsel, would overcome the pressures created by the custodial nature of the situation. Id. at 686, 108 S.Ct. 2093; see also United States v. Hall, 905 F.2d 959, 961, 964-65 (6th Cir.1990) (holding that once an accused expresses a desire to deal with police only through counsel, a presumption is created that any subsequent waiver of the right to counsel at the authorities’ behest is coercive and not purely voluntary and relying on Roberson to reject the proposition that “a fresh set of Miranda warnings would reassure a suspect who had been denied counsel that his rights would remain untrammeled”). II. Because we hold that it was error to admit Van Hook’s statements, we must “review[] the remainder of the evidence against [him] to determine whether the admission of the confession was harmless beyond a reasonable doubt.” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). A confession can be “the most probative and damaging evidence that can be admitted against [a defendant].” Id. at 296, 111 S.Ct. 1246 (internal quotation marks and citation omitted). In his authoritative concurrence in Brecht v. Abrahamson, 507 U.S. 619, 641, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), Justice Stevens adopted the applicable standard of harmless error from Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), which requires that if “one cannot say, with fair assurance, ... that the" }, { "docid": "5358081", "title": "", "text": "L.Ed.2d 704 (1988), and United States v. Wolf, 879 F.2d 1320 (6th Cir.1989), are totally distinguishable from this case and, consequently, the rules announced in those cases are inapplicable here. I. The rule of Roberson is that an accused under arrest and in police custody for a serious offense, who, after being warned under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), invokes a fifth amendment right to counsel by expressing a desire to deal with the police only through counsel, may not be interrogated further until counsel has been made available to him unless he initiates further communication with the police. If he is further interrogated before counsel has been made available to him, there is a presumption that “any subsequent waiver [of the Miranda right to remain silent] has come at the authorities’ behest, and not at the suspect’s own instigation, and is itself the product of the ‘inherently compelling pressures’ [of the custodial interrogation] and not the purely voluntary choice of the suspect.” Arizona v. Roberson, 486 U.S. 675, 681, 108 S.Ct. 2093, 2098, 100 L.Ed.2d 704 (1988). The Roberson rule is an extension of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and was fashioned by the Supreme Court in the context of facts so totally different from the facts of this case as to make it evident that Roberson’s rule was not intended to apply in a case of the kind before us. The first important distinction between Roberson and this case is the differing circumstances in the two cases in which the right to counsel was invoked. The circumstances are important because they emphasize the constitutional significance of the difference between invoking a fifth amendment rather than a sixth amendment right to counsel — a distinction the Supreme Court emphasized in Roberson. Immediately after Roberson was arrested on suspicion of burglary, he was given Miranda warnings by the arresting officer. Roberson responded that he “wanted a lawyer before answering any questions”; thereby invoking a fifth amendment right to counsel. Counsel was not provided to" }, { "docid": "23394046", "title": "", "text": "in no event use any incriminating statements made by Edwards prior to his having access to counsel. Had Edwards initiated the meeting on January 20, nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely listening to his voluntary, volunteered statements and using them against him at the trial. The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. Absent such interrogation, there would have been no infringement of the right that Edwards invoked and there would be no occasion to determine whether there had been a valid waiver. Rhode Island v. Innis, [446 U.S. 291, 298 n. 2, 100 S.Ct. 1682, 1688 n. 2, 64 L.Ed.2d 297 (1980) ], makes this sufficiently clear. Id. at 485-86, 101 S.Ct. at 1885 (emphasis added). Two years after Edwards, in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), a plurality of the Court announced a two-part test by which to gauge the admissibility of a confession offered by a suspect after his invocation of the right to counsel. The confession is admissible, the Court held, if (a) the suspect initiates the discussion that leads to it and (b) the totality of the circumstances reveals that the purported waiver is both voluntary and intelligent. Id. at 1044-46, 103 S.Ct. at 2834-35 (plurality opinion); see also id. at 1048-50, 103 S.Ct. at 2836-37 (Powell, J., concurring in the judgment). More recently, in Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), in language that the majority surprisingly quotes and emphasizes, the Supreme Court held that in the wake of a request for counsel “it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the ‘inherently compelling pressures’ and not the purely voluntary choice of the suspect.” Id. at 681, 108 S.Ct. at 2097-98, quoted ante at 421 (with same emphasis added). Mirroring the more explicit language of Edwards and Bradshaw, Roberson’s tacit suggestion is that a subsequent waiver" }, { "docid": "10341223", "title": "", "text": "704 (1988), the Supreme Court explained that the bright-line, prophylactic Edwards rule protects against the inherently compelling pressures of custodial interrogation by creating a presumption that any subsequent waiver of the right to counsel at the authorities’ behest was coercive and not purely voluntary. Id. at 685-86, 108 S.Ct. 2093. Moreover, the Supreme Court expressly rejected the contention that the fresh issuance of Miranda warnings, after the suspect requested counsel, would overcome the pressures created by the custodial nature of the situation. Id. at 686, 108 S.Ct. 2093; see also United States v. Hall, 905 F.2d 959, 961, 964-65, (6th Cir.1990), cert. denied, 501 U.S. 1233, 111 S.Ct. 2858, 115 L.Ed.2d 1025 (1991) (holding that once an accused expresses a desire to deal with police only through counsel, a presumption is created that any subsequent waiver of the right to counsel at the authorities’ behest is coercive and not purely voluntary; invoking Roberson in rejecting the proposition that “a fresh set of Miranda warnings would ‘reassure’ a suspect who had been denied counsel” that “his rights would remain untrammeled.”). Accordingly, because we find that Abe-la’s Fifth Amendment right to counsel was violated and the state courts’ orders rejecting this claim are contrary to clearly established federal law, as determined by the U.S. Supreme Court, we grant Abela’s request for habeas relief on this ground. 2. Whether Abela’s Statements Were Unknowing and Involuntary Due to His Physical and Mental Condition In addition to arguing that his statements to the police were inadmissible because they were elicited in violation of his Fifth Amendment-based right to counsel, Abela also contends that the statements were unknowing and involuntary because he was intoxicated, in pain, and on pain medication during police questioning. The state bears the burden of proving that a defendant “voluntarily, knowingly, and intelligently waived his right to silence and counsel.” United States v. Bentley, 726 F.2d 1124, 1126 (6th Cir.1984). This Court uses a “totality of the circumstances” to determine whether a petitioner’s statements were involuntary. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The Supreme Court" }, { "docid": "23394047", "title": "", "text": "his invocation of the right to counsel. The confession is admissible, the Court held, if (a) the suspect initiates the discussion that leads to it and (b) the totality of the circumstances reveals that the purported waiver is both voluntary and intelligent. Id. at 1044-46, 103 S.Ct. at 2834-35 (plurality opinion); see also id. at 1048-50, 103 S.Ct. at 2836-37 (Powell, J., concurring in the judgment). More recently, in Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), in language that the majority surprisingly quotes and emphasizes, the Supreme Court held that in the wake of a request for counsel “it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the ‘inherently compelling pressures’ and not the purely voluntary choice of the suspect.” Id. at 681, 108 S.Ct. at 2097-98, quoted ante at 421 (with same emphasis added). Mirroring the more explicit language of Edwards and Bradshaw, Roberson’s tacit suggestion is that a subsequent waiver “at the suspect’s own instigation” is not subject to such presumption. Similarly, in Minnick v. Mississippi, — U.S. -, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990), a recent decision wholly neglected by my colleagues, the Supreme Court held that when an accused requests counsel, “interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney.” Id. 111 S.Ct. at 491 (emphasis added). Like Bradshaw and Roberson, Minnick is a conscious and careful echo of Edwards. Writing for the Court in Minnick, Justice Kennedy repeatedly stressed that the prophylactic protection of these several rulings only extends to situations involving “police-initiated questioning.” Id.; see also id. (“a fair reading of Edwards and subsequent cases demonstrates that we have interpreted the rule to bar police-initiated interrogation unless the accused has counsel with him at the time of questioning”) (emphasis added); id. at 489 (“ ‘a valid waiver of th[e] right [to have counsel present during questioning] cannot be established by showing only that [the accused] responded to" }, { "docid": "10999232", "title": "", "text": "held that they prohibit a police commander from subjecting his subordinate, who has previously exercised his right to counsel, to a subsequent meeting at the same police station to give him further advice to contact counsel concerning the same offense. We agree with the Court of Military Review. In Edwards v. Arizona, supra, the Supreme Court stated [t]hat when the accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. 451 U.S. at 484-85, 101 S.Ct. at 1884-85 (footnote omitted). In Arizona v. Roberson, 486 U.S. 675, 681-82, 108 S.Ct. 2093, 2097-98, 100 L.Ed.2d 704 (1988), the Su preme Court further explained what evil this “bright line” test was designed to combat: Thus, the prophylactic protections that the Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)] warnings provide to counteract the “inherently compelling pressures” of custodial interrogation and to “permit a full opportunity to exercise the privilege against self-incrimination,” 384 U.S., at 467, 86 S.Ct., at 1624, are implemented by the application of the Edwards corollary that if a suspect believes that he is not capable of undergoing such questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the “inherently compelling pressures” and not the purely voluntary choice of the suspect. As Justice WHITE has explained, “the accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities’ insistence to make a statement without counsel’s presence" } ]

[ { "docid": "22357977", "title": "", "text": "to other mechanics were the reasons given for his layoff specifically. Therefore, Nidds’ evidence is insufficient to raise a genuine issue of fact as to whether Schindler’s reasons for the layoff were pretextual. Moreover, there is insufficient evidence to raise a genuine issue of fact as to whether the actual reason was a discriminatory one. Nidds cites the “old timers” comment allegedly made by Graham as evidence of a discriminatory motive. That comment, however, was very much like the comments in Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir.1993), which the court held did not support an inference of discriminatory motive. In Nesbit, the plaintiffs immediate supervisor commented to Nesbit that “[w]e don’t necessarily like grey hair.” The court found that the “comment was uttered in an ambivalent manner and was not tied directly to Nesbit’s termination,” and upheld the grant of summary judgment in favor of the employer. Id. Similarly, Graham’s comment was ambiguous because it could refer as well to longtime employees or to employees who failed to follow directions as to employees over 40. Moreover, the comment was not tied directly to Nidds’ layoff. Like the comment in Nesbit, therefore, it is weak evidence and not enough to create an inference of age discrimination. Also distinguishable is Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1411 (9th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 295, 136 L.Ed.2d 214 (1996), upon which Nidds relies. There, we reversed the grant of summary judgment in favor of the employer where the employee had alleged “that on three separate occasions, when he asked to be considered for president, he was told the Board wanted somebody younger for the job” and had submitted evidence to the same effect in the form of meeting notes and an affidavit of a coworker. Nidds’ evidence, by contrast, is neither as direct nor as weighty. It is not enough to support an inference of age discrimination. III. THE RETALIATION CLAIM A. Prima Facie Case In a retaliation case, the burden shifting scheme is much the same as that in an age discrimination case." } ]

[ { "docid": "23083448", "title": "", "text": "denied, — U.S. -, 117 S.Ct. 295, 136 L.Ed.2d 214 (1996). In Mangold, for example, this Court affirmed a trial court’s admission of evidence of discriminatory remarks by division directors who commented that “we want fresh young blood in this group,” “[w]e’re going into a bright new future in which we have an excellent staff of young professional people,” and “older employees, unfortunately, don’t take advantage of all the opportunities that are offered to them.” Mangold, 67 F.3d at 1476-77. The Mangold court distinguished Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir.1990), and Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir.1993), cases that found discriminatory remarks to be “stray remarks” insufficient to preclude summary judgment. The Man-gold court reasoned that, in contrast to Merrick and Pepsico, the comments in Mangold were tied to the employment decision because the comments were made by senior decision-makers. Mangold, 67 F.3d at 1477. Mustafa’s evidence also reveals that Goldman was in a position of authority with respect to Mustafa’s employment. At every stage of the dispute, Goldman signed the school’s correspondence with Mustafa, including one letter that indicated that Goldman’s communication was the “official notification” of the school district. Also, Goldman admitted during his deposition that he was the one who decided to reinstate Mustafa as a substitute. Furthermore, Goldman stated that he alone decided to disregard the recommendation of the Human Behavior Institute that Mustafa work only in alternative education. Evidence of ethnically biased remarks from a person in such a position of authority are sufficient to allege the connection necessary under DeHorney to survive summary judgment. The “crux” of disparate treatment claims is “the elusive factual question of intentional discrimination.” Lowe v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir.1985), modified, 784 F.2d 1407 (9th Cir.1986) (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 8, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). Therefore, “because of the inherently factual nature of the inquiry, the plaintiff need produce very little evidence of discriminatory motive to raise a genuine issue of fact.” Lindahl, 930" }, { "docid": "23044646", "title": "", "text": "process of evaluation and deliberation. There is also little evidence of an established formal or informal company procedure for discharging high-level employees. In fact, when Pottenger himself discharged the then-head of the Idaho Pulp and Paper Division in 1997, he did so in a manner similar to his own discharge. Potlatch’s failure to follow some unspecified procedure in its treat ment of Pottenger does not cast any doubt on its proffered reason for his termination. To show discriminatory motive, Pottenger states that Paulson made comments referring to an “old management team,” an “old business model,” and “deadwood.” Remarks can constitute evidence of discrimination. The Supreme Court has held that telling an employee he “was so old [he] must have come over on the Mayflower” and “was too damn old to do [his] job” constituted evidence of age discrimination. Reeves, 530 U.S. at 151, 120 S.Ct. 2097 (alteration in original). We have found a triable issue of material fact when an employee was told upon applying for an executive position that the board “wanted somebody younger for the job,” Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410-11 (9th Cir.1996), and, in a Title VII case, when an employee was told, during the period that he was otherwise eligible for a university position, that “two Chinks” in the department was “more than enough,” Chuang, 225 F.3d at 1128. These remarks are clearly sufficient to support an inference that the decisionmaker acted in a discriminatory fashion. In other cases, we have held that some remarks lead to no reasonable inference of discrimination and thus no triable issue of material fact exists. We have found that a supervisor’s comment about getting rid of “old timers” because they would not “kiss [his] ass” did not sufficiently support an inference of age discrimination, Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918-19 (9th Cir.1996), that a comment that “we don’t necessarily like grey hair” constituted “at best weak circumstantial evidence” of discriminatory animus, Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993), that the use of the phrase “old-boy network” is generally considered" }, { "docid": "23040003", "title": "", "text": "and the composition of the promotion pools went towards the weight, not the admissibility, of the statistical evidence. The PUC cross-examined Dr. Ble-cha fully on these points. Even if the statistical disparities were not so substantial so as to infer causation from the statistics alone, Watson, 487 U.S. at 994-95, 108 S.Ct. at 2788-89, the Plaintiffs stress that the statistics were used as evidence to prove intentional discrimination under a “pattern and practice” disparate treatment theory. See Hazelwood School District v. United States, 433 U.S. 299, 307-08, 97 S.Ct. 2736, 2741, 53 L.Ed.2d 768 (1977); International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 1854-55, 52 L.Ed.2d 396 (1977). The statistics were relevant and the court did not err in admitting them. The PUC also argues that the court erred in admitting “stray remarks.” Specifically, it points to remarks by Ms. Barkovich (“Maurice, you know we want fresh young blood in this group”), Mr. Weisser (“We’re going into a bright new future in which we have an excellent staff of young professional people” and “older employees, unfortunately, don’t take advantage of all the opportunities that are offered to them”), and “Division Directors” in a draft memorandum (“The CPUC’s overall effort should be to keep as many of our younger, talented staff employed within the constraints of civil service rules”). The PUC cites Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir.1990); Rose, 902 F.2d at 1423; and Selby v. Pepsico, Inc., 784 F.Supp. 750, 757-58 (N.D.Cal.1991), aff'd sub nom., Nesbit v. Pepsico., Inc., 994 F.2d 703, 705 (9th Cir.1993), contending that the “stray” remarks were irrelevant to show intent because they were made by nondefen-dants. All three cases are distinguishable. In both Merrick (referring to a younger selectee as “a bright, intelligent, knowledgeable young man”) and Rose (referring to senior employees as “part of an old-boy network”) the remarks alone were insufficient to withstand summary judgment. Here, on the other hand, there is other evidence in addition to the remarks. Pepsico is similarly distinguishable because the remarks there (“Pepsi didn’t necessarily like gray" }, { "docid": "23355766", "title": "", "text": "inference that the discharges were motivated by age discrimination. Specifically, appellants argue that the cumulative effect of the following gives rise to such an inference: (1) statistical evidence that some older workers were terminated while some younger workers were retained and that employees hired after the RIF were generally younger than those terminated; (2) a comment by Nesbit’s direct superior to Nesbit that “[w]e don’t necessarily like grey hair”; and (3) an interview of Pepsieo’s Senior Vice President of Personnel in which he stated, “We don’t want unpromo-table fifty-year olds around.” After examining this evidence we find that it fails to demonstrate “that the discharge occurred under circumstances giving rise to an inference of age discrimination.” Rose, 902 F.2d at 1421. . First, the statistical evidence presented by the appellants is unavailing because it fails to connect the RIF with any pattern of discrimination. For example, three of the five chain account managers retained were forty or over, and thus protected by the Act. Also, the other chain account manager terminated along with Nesbit was only 38 years old — the second youngest CAM prior to the terminations. It is also important that of the nineteen employees terminated overall, ten were under forty. There is no statistical pattern that adversely affects older employees. Id. at 1423 (statistics must show “stark pattern of discrimination unexplainable on grounds other than age.”) The subsequent hiring of younger persons to fill other openings created by attrition is immaterial to Pepsieo’s intent with respect to these plaintiffs. See id. at 1422 (hiring that occurred much later than terminations does not fulfill plaintiffs’ burden). Appellant Nesbit also relies on a comment by supervisor Steven Lawrence made to Nes-bit during a meeting. Lawrence reportedly said that “[w]e don’t necessarily like grey hair.” Although more than the “stray remark” 'involved in Merrick v. Farmers Ins. Group, 892 F.2d 1434 (9th Cir.1990), Lawrence’s comment was uttered in an ambivalent manner and was not tied directly to Nesbit’s termination. It is at best weak circumstantial evidence of discriminatory animus toward Nesbit. The remaining evidence relied upon by the appellants is" }, { "docid": "14698929", "title": "", "text": "if causally related to the discharge decisionmaking process. See id. at 1044 (noting that person making discriminatory remarks had authority over plaintiff, that his remarks were contemporaneous with her firing, and that his remarks were related to his motivation for the decision); see also DiCarlo, 358 F.3d 408, 417 (“[T]he fact that the comments were made by Bailey, [plaintiffs] immediate supervisor and a decision-maker, that they specifically negatively and derogatorily referenced [plaintiffs] Italian-American heritage, and that the hate-speech occurred three weeks prior to [plaintiffs] termination, all culminate in the conclusion that [plaintiff] has presented sufficient evidence of causation to withstand summary judgment.”). These cases, however, do not preclude Mr. Bowden from relying on Mr. Gavino’s discriminatory remarks as circumstantial evidence of discrimination/pretext, especially since there are facts to support Mr. Gavino’s having played a meaningful role in the decision to terminate. See, e.g., Nesbit v. Pepsico, Inc., 994 F.2d 703, 704-05 (9th Cir.1993) (stating that comment by plaintiffs supervisor that “we don’t necessarily like grey hair” was uttered in an ambivalent manner and was not tied directly to plaintiffs termination and so was “at best weak circumstantial evidence of discriminatory animus”); Ercegovich, 154 F.3d at 355 (noting that “the absence of a direct nexus does not necessarily render a discriminatory remark irrelevant”). Moreover, there is evidence that there is a nexus between at least one of the discriminatory remarks and Mr. Bowden’s removal. As discussed above, on either November 21 or 27, 1998, Mr. Gavino allegedly said to Mr. Bowden, “I’m going to get you, ‘nigger,’ ” when Mr. Bowden told Mr. Gavino that he was going to see the doctor even though Mr. Gavino said that he could not leave the workroom floor. See Bowden Dep. at 55:15-25. This discriminatory remark, “I’m going to get you, ‘nigger,’ ” was made either the week before or the day of the alleged threat by Mr. Bowden, which was the basis of his removal. One could reasonably infer, therefore, that Mr. Gavino made up the story that Mr. Bowden threatened him as a way to “get back” at Mr. Bowden. Because of" }, { "docid": "5482607", "title": "", "text": "Jack Kaufman, brought to work. Plaintiff claims that Kaufman felt that he had been racially discriminated against, although he presents no evidence, apart from his own assertions, in support of this claim. As with the Pitman comment, plaintiff does not allege that he was present when Markham purportedly made these remarks to Kaufman. Indeed, plaintiff doesn’t address the Kaufman allegations at all in his opposition. For his part, Markham, in his sworn declaration, denies ever making any negative comments about Kaufman’s food. (Markham decl. ¶ 8). Construed in the light most favorable to plaintiff, the comments cited by plaintiff fail to raise a triable issue regarding the credibility of defendant’s proffered explanation for Kendrick’s selection. Discriminatory comments, or remarks indicating stereotyping, can create the inference of discriminatory motive. See Warren, 58 F.3d at 444 (plaintiff, a Hispanic, alleged that he personally heard supervisor make a derogatory comment about Hispanics); Cordova v. State Farm Ins., 124 F.3d 1145, 1150 (9th Cir.1997) (employer referred to Mexican-American employee as a “dumb Mexican”). However, “stray remarks,” comments uttered in an ambivalent manner or that have only an attenuated connection to the challenged employment decision, are not sufficient. See Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir.1990); Nesbit v. Pepsico, 994 F.2d 703, 705 (9th Cir.1993). The comments plaintiff attributes to Markham lack any discernible nexus to the challenged employment action in this case. None of the comments was directed at plaintiff or at African-Americans as a group. The only comment with a slightly racial connotation — namely, the question concerning the Mexican dish — was uttered in an ambivalent manner. While plaintiff asserts that Ms. Pitman is Hispanic, the comment Markham directed at her carried no racially derogatory overtones. Furthermore, plaintiff does not explain, nor could the Court determine from a review of the record, when any of these comments were even made. Finally, plaintiff cites a 1993 report by Michael J. Creppy, Deputy General Counsel for EEO at INS and Chairman of an INS EEO task force, which addresses the representation of African Americans and other minorities at the INS." }, { "docid": "23040004", "title": "", "text": "young professional people” and “older employees, unfortunately, don’t take advantage of all the opportunities that are offered to them”), and “Division Directors” in a draft memorandum (“The CPUC’s overall effort should be to keep as many of our younger, talented staff employed within the constraints of civil service rules”). The PUC cites Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir.1990); Rose, 902 F.2d at 1423; and Selby v. Pepsico, Inc., 784 F.Supp. 750, 757-58 (N.D.Cal.1991), aff'd sub nom., Nesbit v. Pepsico., Inc., 994 F.2d 703, 705 (9th Cir.1993), contending that the “stray” remarks were irrelevant to show intent because they were made by nondefen-dants. All three cases are distinguishable. In both Merrick (referring to a younger selectee as “a bright, intelligent, knowledgeable young man”) and Rose (referring to senior employees as “part of an old-boy network”) the remarks alone were insufficient to withstand summary judgment. Here, on the other hand, there is other evidence in addition to the remarks. Pepsico is similarly distinguishable because the remarks there (“Pepsi didn’t necessarily like gray hair” and “we don’t want a unpromotable fifty-year-olds around”) were not tied to the employment decisions. Here, the remarks were by division directors, or by the President of the PUC. The statements were made during the scope of employment by senior decision-makers regarding assignments, promotions, or policies. Even if the remarks alone might have been insufficient to withstand summary judgment, however, the remarks were certainly relevant and, along with other substantial evidence, created a strong inference of intentional discrimination. See Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 109 S.Ct. 1775, 1791, 104 L.Ed.2d 268 (1989) (“[rjemarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision ... [although] stereotyped remarks can certainly be evidence that gender played a part”) (emphasis in original). D. Jurisdictional Requirements of the California Tort Claims Act. The PUC next argues that the Plaintiffs’ state tort claim for violation of public policy should have been barred because the Plaintiffs failed to comply with notice provisions of the California" }, { "docid": "22388419", "title": "", "text": "F.2d at 1438. She presented a statement made by Ruschman to Hunt Wesson's national sales manager, Bernie Stipetic, that Guthier “did not want to deal with another female after having dealt with ... Louise De PreFontaine.” This comment directly suggests the existence of bias and no inference is necessary to find discriminatory animus. See Cordova, 124 F.3d at 1149; Davis, 14 F.3d at 1085. Hunt Wesson raises a number of arguments to counter that evidence, but none are availing at this stage. Hunt Wesson is incorrect in asserting that this statement is inadmissable hearsay. We have held that an admission by an agent within the scope of his employment is admissable. See Breneman v. Kennecott Corp., 799 F.2d 470 (9th Cir.1986) (multiple hearsay is admissable if each of the speakers was involved in the employer’s decision). Hunt Wesson also disputes that Sti-petic was involved in the employment decision, but this dispute is for thp trier of fact to resolve. Furthermore, the comment is not a “stray remark” that is “uttered in an ambivalent manner and [is] not tied directly to [the plaintiffj’s termination,” which we have held to be insufficient. See Merrick v. Farmers Ins. Group, 892 F.2d 1434 (9th Cir.1990); Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir.1993) (statement of corporate officer having no direct relationship to plaintiff that “[W]e don’t necessarily like grey hair” in age discrimination suit not sufficient to withstand summary judgment); Nidds, 113 F.3d at 918-19 (employer’s . “old timers” comment was ambivalent and not tied to termination and thus insufficient to establish age discrimination). Ruschman’s comment was not ambivalent and it is related directly to the positions that Godwin sought. The record also contains direct evidence of discriminatory animus toward women as employees. Alcy Grimes, the former senior marketing manager for the Wesson brand, testified that while she was giving a presentation at a sales meeting, someone gave her a “Barbie doll kit” containing two dildos and a bottle of Wesson oil. She also testified that the company sponsored hunting and fishing trips to which she was not' invited and other women" }, { "docid": "13164698", "title": "", "text": "he was qualified for the job; 3) that he was discharged; and 4) that the position remained open and was ultimately filled by a person of a different class. See also, Higgins v. City of Vallejo, 823 F.2d 351, 355 (9th Cir.1987) (in a reverse discrimination case the same standards from McDonnell Douglas apply). Similarly, to prove a prima facie case of an ADEA violation, the plaintiff must establish that he was: 1) a member of a protected class [age 40-70]; 2) performing his job in a satisfactory manner; 3) discharged; and 4) replaced by a substantially younger employee with equal or inferior qualifications. Wallis, 26 F.3d at 891 (citation omitted). . Q (Holstein): Do you have any evidence in your mind or any episodes or comments or behavior to offer today that would indicate that you were fired because you were disabled? A (Payne): I don’t know what was in Nor-west's mind. Q: So you don't have anything today? You are not of the— A: Maybe Norwest wanted to get rid of me because I was a disabled person. . Payne has presented less evidence of discrimination than that presented by the unsuccessful Plaintiff in Nesbit v. Pepsico, Inc., 994 F.2d 703 (9th Cir.1993). In Nesbit (an ADEA case), the Plaintiff relied on the following evidence for a claim of age discrimination: \"(1) statistical evi dence that some older workers were terminated while some younger workers were retained and that employees hired after the RIF were generally younger than those terminated; (2) a comment by [the employee’s] direct superior to [the employee] that '[w]e don’t necessarily like grey hair’; (3) an interview of [the employer’s] Senior Vice President of Personnel in which he stated, 'We don’t want unpromotable fifty-year olds around.’ ” Id. at 705. The Ninth Circuit, \"viewing the evidence cumulatively, and in a light most favorable to the appellants” determined that it fell short of creating an inference of discrimination and granted the employer summary judgment. Id. . Plaintiff consistently relies on conclusions made in Plaintiff’s affidavit to dispute Defendants’ statements of the facts, rather than introducing" }, { "docid": "23263040", "title": "", "text": "civil rights litigant will not be denied a trial on the merits.’ ”). The district court, in granting summary judgment, emphasized that Schnidrig was eliminated as a candidate for president by Ronald Goerss of the executive search firm hired by Columbia and not by the Board. The district court found there was no evidence Goerss was ever told to consider age and that he never considered age in selecting candidates for the Board’s consideration. The district court concluded the comments made by Fred Neth, Sr., were attenuated from the decision-making process, and therefore, were merely “stray remarks” with no connection to the employment decision. The Ninth Circuit authority relied on by the district court is distinguishable. In Merrick v. Farmers Ins. Group, 892 F.2d 1434 (9th Cir.1990), an executive for Farmers made one comment that he chose one candidate over another because he was “ ‘a bright, intelligent, knowledgable young man.’ ” Id. at 1438. Similarly, in Nesbit v. Pepsico, Inc. 994 F.2d 703 (9th Cir.1993), a supervisor commented during a meeting that “ ‘[w]e don’t necessarily like grey hair.’ ” Id. at 705. The court found this “comment was uttered in an ambivalent manner and was not tied directly to Nesbitt’s termination.” Id. Contrasting, in the instant case, Schnidrig alleges that on three separate occasions, when he asked to be considered for president, he was told the Board wanted somebody younger for the job. Significantly, at least one of these instances occurred after Goerss had submitted his list of candidates to the Board. Furthermore, Schnidrig did more than offer mere allegations of discriminatory intent; he produced evidence in the form of shorthand notes taken at the February 25, 1992, Board meeting and the affidavit of a coworker. Although it is possible that Columbia sufficiently insulated the decision-making process from the discriminatory remarks of the directors, in light of the reluctance of this Circuit to allow summary judgment where there is direct or circumstantial evidence of discriminatory intent, the district court was premature in resolving this issue on summary judgment. Whether Columbia relied on impermissible factors in refusing to promote" }, { "docid": "2386755", "title": "", "text": "U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977). Cordova has offered direct evidence of such discriminatory animus: Raker’s alleged comments that Maldonado was a “dumb Mexican” and that he was hired because he was a minority. Such derogatory comments can create an inference of discriminatory motive. See, e.g., Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir.1995) (fire chiefs derogatory comments about Hispanics create inference of discriminatory motive); Lindahl v. Air France, 930 F.2d 1434, 1439 (9th Cir.1991) (supervisor’s remarks indicating sexual stereotyping create inference of discriminatory motive). Nor do Raker’s alleged comments fall within the ambit of stray remarks that have been held insufficient to establish discrimination. Cf. Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir.1993) (supervisor’s comment that “[w]e don’t necessarily like grey hair” was weak circumstantial evidence of discriminatory animus on the basis of age, was uttered in ambivalent manner, and was not tied directly to employee’s termination); Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir.1990) (hiring executive’s comment that he chose “a bright, intelligent, knowledgeable young man” over appellant was merely stray remark and insufficient by itself to establish age discrimination). Calling someone a “dumb Mexican” is an egregious and bigoted insult, one that constitutes strong evidence of discriminatory animus on the basis of national origin. Moreover, there is nothing ambivalent about Raker’s alleged remarks here and they are not the only evidence Cordova offers to establish a prima facie case. Finally, if such remarks were indeed made, they could be proof of discrimination against Cordova despite their reference to another agent and their utterance after the hiring decision. Raker was the one who selected the trainee agent; if he has any animus toward Mexicans, it likely would have affected his trainee agent decision as well. See, e.g., Warren, 58 F.3d at 443 (general comments about Hispanics create inference of discriminatory motive against particular complainant). In addition, the timing of his alleged remarks is not so far removed from the contested hiring decision so as to render them completely unrelated to that decision. Cordova has established" }, { "docid": "23044647", "title": "", "text": "for the job,” Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410-11 (9th Cir.1996), and, in a Title VII case, when an employee was told, during the period that he was otherwise eligible for a university position, that “two Chinks” in the department was “more than enough,” Chuang, 225 F.3d at 1128. These remarks are clearly sufficient to support an inference that the decisionmaker acted in a discriminatory fashion. In other cases, we have held that some remarks lead to no reasonable inference of discrimination and thus no triable issue of material fact exists. We have found that a supervisor’s comment about getting rid of “old timers” because they would not “kiss [his] ass” did not sufficiently support an inference of age discrimination, Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918-19 (9th Cir.1996), that a comment that “we don’t necessarily like grey hair” constituted “at best weak circumstantial evidence” of discriminatory animus, Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993), that the use of the phrase “old-boy network” is generally considered a colloquialism unrelated to age, Rose v. Wells Fargo & Co., 902 F.2d 1417, 1423 (9th Cir.1990), and that an employer’s comment describing a younger employee promoted over an older employee as a “bright, intelligent, knowledgeable young man” did not create an inference of age discrimination, Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438-39 (9th Cir.1990). Paulson’s remarks in this case do not sufficiently support an inference of age discrimination so as to create a triable issue of material fact that would defeat summary judgment. In the context of this case, the phrase “old business model,” does not support an inference of age discrimination. Similar to the language in Rose, the phrase is a colloquialism not generally associated with the target’s age. Nor does Paulson’s use of the term “old management team” during the same meeting create a triable issue of fact. Similarly, the management committee’s use of the term “deadwood” does not suggest age discrimination. The Oxford English Dictionary defines “deadwood” as “[a] person or thing regarded as useless or unprofitable; a hindrance" }, { "docid": "23394516", "title": "", "text": "establishing the identity, age, or inferior qualifications of this employee. In view of the inconsistency of Ritter’s claims and the vagueness of the evidence offered in support of them, we conclude, as did the district court, that Ritter failed to present sufficient evidence to raise any genuine material issue of fact as to whether he had been replaced by a person outside the protected class. See Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). Ritter, however, could also prove age discrimination “through circumstantial, statistical or direct evidence that the discharge occurred under circumstances giving rise to an inference of age discrimination.” Wallis, 26 F.3d at 891 (quoting Rose, 902 F.2d at 1421). Ritter contends that because he worked in a number of projects and positions which were eventually subject to cutbacks and layoffs, there exists an inference of “subterfuge” based on age discrimination. We find Ritter’s argument meritless. In Nesbit v. Pepsico, Inc., 994 F.2d 703 (9th Cir.1993), an employee claimed that his employer had violated the California Fair Employment and Housing Act by discriminating against him because of his age. The plaintiff relied on the following evidence: (1) statistical evidence that some older workers were terminated while some younger workers were retained and that employees hired after the RIF were generally younger than those terminated; (2) a comment by [the employee’s] direct superior to [the employee] that ‘[w]e don’t necessarily like grey hair’; and (8) an interview of [the employer’s] Senior Vice President of Personnel in which he stated, “We don’t want unpromotable fifty-year olds around.” Id. at 705. Observing that California courts have adopted the analysis applicable to ADEA claims, we concluded that “[v]iewing the evidence cumulatively, and in a light most favorable to the appellants, it falls short of creating an inference of age discrimination.” Id. at 704-05. Ritter presented less evidence than that offered by the unsuccessful plaintiff in Nesbit. His employment history does not give rise to an inference of age discrimination. We hold that the district did not err in concluding that Ritter failed to present" }, { "docid": "22388420", "title": "", "text": "[is] not tied directly to [the plaintiffj’s termination,” which we have held to be insufficient. See Merrick v. Farmers Ins. Group, 892 F.2d 1434 (9th Cir.1990); Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir.1993) (statement of corporate officer having no direct relationship to plaintiff that “[W]e don’t necessarily like grey hair” in age discrimination suit not sufficient to withstand summary judgment); Nidds, 113 F.3d at 918-19 (employer’s . “old timers” comment was ambivalent and not tied to termination and thus insufficient to establish age discrimination). Ruschman’s comment was not ambivalent and it is related directly to the positions that Godwin sought. The record also contains direct evidence of discriminatory animus toward women as employees. Alcy Grimes, the former senior marketing manager for the Wesson brand, testified that while she was giving a presentation at a sales meeting, someone gave her a “Barbie doll kit” containing two dildos and a bottle of Wesson oil. She also testified that the company sponsored hunting and fishing trips to which she was not' invited and other women did not attend. Godwin testified that the president of the company, Marshall Ran-sam, made derogatory comments about women at meetings. In sum, Godwin’s direct evidence of discriminatory animus satisfies the required showing at the pretext stage. See Cordova, 124 F.3d at 1149. In those eases where direct evidence is unavailable, however, the plaintiff may come forward with circumstantial evidence that tends to show that the employer’s pfoffered motives were not the actual motives because they are inconsistent or otherwise not believable. Such evidence of “pretense” must be “specific” and “substantial” in-order to create a triable issue with respect to whether the employer intended to discriminate on the basis of sex. See Bradley, 104 F.3d at 270 (no evidence beyond that produced for the prima facie case presented); Collings, 63 F.3d at 834 (no evidence beyond that produced for the prima facie case presented); Wallis, 26 F.3d at 890 (no evidence beyond that produced for the prima facie case); see also Nidds, 113 F.3d at 918 (circumstantial evidence of shifting explanations are not “sufficiently probative”). In" }, { "docid": "23643200", "title": "", "text": "accessibility” caused by her FMLA protected leave did not constitute circumstantial evidence of discrimination because there was no link between the co-workers’ complaints and the decision process). Thus, Tran’s comments cannot be dismissed as “stray remark[s].” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir.1998) (finding that a comment made by an individual who may have influenced the decision making process was not a stray remark because it was not “uttered in an ambivalent manner” but “tied directly to[the plaintiff]’s termination” (quoting Nesbit v. PepsiCo., Inc., 994 F.2d 703, 705 (9th Cir.1993))). There is a factual dispute as to whether Tran participated directly in the reduction in force process. For the purposes of summary judgment, we need not resolve such inconsistencies. Godwin, 150 F.3d at 1221 (finding that disputes as to whether individual was involved in the employment decision was an issue for the trier of fact). Regardless, in her deposition, Robin Dykehouse, the employee in charge of the reduction in force, testified that she relied heavily on Tran’s recommendations and evaluations in the decision to terminate Liu. Where a decision maker rests his or her ultimate decision on an opinion or evaluation that is tainted by discrimination, she does not start from a “clean slate.” Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1284 (9th Cir.2001). Thus, an employer may not escape liability simply because the individual with discriminatory animus was not the final decision maker in the adverse employment action. Id. at 1284; Gagnon v. Sprint Corp., 284 F.3d 839, 848 (8th Cir.) (“[C]ourts look beyond the moment a decision was made in order to determine whether statements , or comments made by other managerial employees played a role in the ultimate decision making process ....”), cert. denied, 537 U.S. 1001, 123 S.Ct. 485, 154 L.Ed.2d 396 and 537 U.S. 1014, 123 S.Ct. 491, 154 L.Ed.2d 420 (2002); Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.1990) (finding that the committee’s decision to fire plaintiff was “tainted” by discriminatory “prejudice” because supervisor “influenced the committee’s deliberations by portraying” plaintiffs “performance ... in the" }, { "docid": "13164699", "title": "", "text": "I was a disabled person. . Payne has presented less evidence of discrimination than that presented by the unsuccessful Plaintiff in Nesbit v. Pepsico, Inc., 994 F.2d 703 (9th Cir.1993). In Nesbit (an ADEA case), the Plaintiff relied on the following evidence for a claim of age discrimination: \"(1) statistical evi dence that some older workers were terminated while some younger workers were retained and that employees hired after the RIF were generally younger than those terminated; (2) a comment by [the employee’s] direct superior to [the employee] that '[w]e don’t necessarily like grey hair’; (3) an interview of [the employer’s] Senior Vice President of Personnel in which he stated, 'We don’t want unpromotable fifty-year olds around.’ ” Id. at 705. The Ninth Circuit, \"viewing the evidence cumulatively, and in a light most favorable to the appellants” determined that it fell short of creating an inference of discrimination and granted the employer summary judgment. Id. . Plaintiff consistently relies on conclusions made in Plaintiff’s affidavit to dispute Defendants’ statements of the facts, rather than introducing direct evidence. For example, with respect to performance reviews, the Plaintiff states that \"Nearly all of Payne's performance reviews revealed overall ratings of “Superior” for almost his entire seven-year tenure at Norwest” with the only citation being to Plaintiff's Statement of Facts, which then refers to Payne's affidavit, which restates the same conclusion. (Pi’s Br. in Opp., p. 28; Pi’s Statement of Facts, p. 5; Payne’s Aff., Pi's App. p. 17). . The burden upon Defendant at this point is one of production of evidence, not persuasion. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 257, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207; Wallis, 26 F.3d 885, 892. The burden of persuasion remains with the Plaintiff at all times. . Although Payne has argued the sex and race discrimination claims together as a claim of reverse discrimination against a “white male,” the result is the same whether analyzed separately or together. . For example, the record shows that in September, 1993, Plaintiff engaged in conduct that his supervisor, John Koppelman, described as \"inappropriate" }, { "docid": "22154471", "title": "", "text": "even where the statement was made by plaintiffs direct supervisor.” Gagne does not support the district court’s conclusion. There, the court held that a supervisor’s comment that he “needed younger blood” did not preclude summary judgment for the employer on plaintiffs age discrimination claim because the comment was both “isolated and ambiguous.” Id. at 314. Here, in contrast, Stacey’s statement that he was going to hire a man for the Program Officer III position was neither isolated nor ambiguous. Furthermore, in this circuit, we have repeatedly held that a single discriminatory comment by a plaintiffs supervisor or decisionmaker is sufficient to preclude summary judgment for the employer. See, e.g., Chuang, 225 F.3d at 1128 (holding that a decisionmaker’s remark that “ ‘two Chinks in the pharmacology department were ‘more than enough’ ” was “an egregious and bigoted insult ... that constitutes strong evidence of discriminatory animus on the basis of national origin”); Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1149 (9th Cir.1997) (holding that an employer’s reference to an employee as a “dumb Mexican” “could be proof of discrimination against [plaintiff] despite their reference to another agent and their utterance after the hiring decision”). The district court stated that even if Stacey made discriminatory remarks, his involvement in the hiring decision was insufficient to overcome summary judgment because there was no evidence that Mark Elicegui, the ultimate decisionmaker, was tainted by Stacey’s prejudice against women. In support of its proposition, the district court cited to DeHorney v. Bank of Am. Nat’l Trust & Sav. Ass’n, 879 F.2d 459, 467-68 (9th Cir.1989), in which we affirmed the grant of summary judgment in favor of the employer because the plaintiff failed to demonstrate a nexus between an agent’s racially discriminatory remark and the plaintiffs termination. In DeHorney, however, the person who uttered the discriminatory remark was not involved in the decisionmaking process, and there was no evidence that the decisionmaker knew of the discriminatory remark or even knew the plaintiffs race. Id. at 468. Where, as here, the person who exhibited discriminatory animus influenced or participated in the decisionmaking process," }, { "docid": "2386754", "title": "", "text": "holding that Cordova failed to raise an inference of discrimination, is misplaced. We noted in Lowe v. City of Monrovia, 775 F.2d 998, 1006 n. 5 (9th Cir.1985), that Hagans should not be read to suggest that a plaintiff who satisfies the four-part McDonnell Douglas test nevertheless may fail to establish a prima facie case. We clarified that Hagans ’ use of the term “prima facie case” did not refer to “the rebuttable presumption that a plaintiff must establish, as the first step in a Title VII ease,” but rather to “the plaintiff’s burden of putting on a case-in-chief that is sufficient to defeat a motion under Fed.R.Civ.P. 41(b) and thus to require the defendant to put on its case in opposition.” Id. Therefore, Hagans is inapplicable here. A plaintiff can also establish a prima facie case of disparate treatment without satisfying the McDonnell Douglas test, if she provides evidence suggesting that the “employment decision was based on a discriminatory criterion illegal under the [Civil Rights] Act.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977). Cordova has offered direct evidence of such discriminatory animus: Raker’s alleged comments that Maldonado was a “dumb Mexican” and that he was hired because he was a minority. Such derogatory comments can create an inference of discriminatory motive. See, e.g., Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir.1995) (fire chiefs derogatory comments about Hispanics create inference of discriminatory motive); Lindahl v. Air France, 930 F.2d 1434, 1439 (9th Cir.1991) (supervisor’s remarks indicating sexual stereotyping create inference of discriminatory motive). Nor do Raker’s alleged comments fall within the ambit of stray remarks that have been held insufficient to establish discrimination. Cf. Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir.1993) (supervisor’s comment that “[w]e don’t necessarily like grey hair” was weak circumstantial evidence of discriminatory animus on the basis of age, was uttered in ambivalent manner, and was not tied directly to employee’s termination); Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir.1990) (hiring executive’s comment that he chose" }, { "docid": "23083447", "title": "", "text": "To prevail under those statutes, Mustafa must prove that the defendants acted with intent to discriminate. Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1113 (9th Cir.1991). Discriminatory remarks may create an inference of discriminatory motive. Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989); Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir.1995); Lindahl v. Air France, 930 F.2d 1434, 1439 (9th Cir.1991). To establish a claim of discrimination, there must be a sufficient nexus between the alleged discriminatory remarks and the adverse employment decision. DeHorney v. Bank of Am., 879 F.2d 459, 468 (9th Cir.1989). Here, Mustafa has offered evidence of racial slurs made by the superintendent in charge of disciplinary matters in response to Mustafa’s attempts to have his disability accommodated. Discriminatory remarks are relevant evidence that, along with other evidence, can create a strong inference of intentional discrimination. Mangold v. California Pub. Util. Comm’n, 67 F.3d 1470, 1476-77 (9th Cir.1995); Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1410-11 (9th Cir.), cert. denied, — U.S. -, 117 S.Ct. 295, 136 L.Ed.2d 214 (1996). In Mangold, for example, this Court affirmed a trial court’s admission of evidence of discriminatory remarks by division directors who commented that “we want fresh young blood in this group,” “[w]e’re going into a bright new future in which we have an excellent staff of young professional people,” and “older employees, unfortunately, don’t take advantage of all the opportunities that are offered to them.” Mangold, 67 F.3d at 1476-77. The Mangold court distinguished Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir.1990), and Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir.1993), cases that found discriminatory remarks to be “stray remarks” insufficient to preclude summary judgment. The Man-gold court reasoned that, in contrast to Merrick and Pepsico, the comments in Mangold were tied to the employment decision because the comments were made by senior decision-makers. Mangold, 67 F.3d at 1477. Mustafa’s evidence also reveals that Goldman was in a position of authority with respect to Mustafa’s employment. At every stage of" }, { "docid": "14698928", "title": "", "text": "L.Ed.2d 662 (1998) (stating that employer is generally vicariously liable for hostile environment created by supervisor); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762-63, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (same). Finally, the USPS argues that, even if the discriminatory remarks allegedly made by Mr. Gavino can be considered because of his role in the decisionmaking process, there is no nexus between the remarks and the decision to remove Mr. Bowden. It is true that some courts have suggested the importance of a nexus. For example, in Vasquez, the Ninth Circuit noted that the plaintiff did not have any direct evidence of discrimination because the only discriminatory remarks were made by a person who was not a decision-maker and the plaintiff did not show a nexus between these remarks and the supervisor’s subsequent employment decision. See Vasquez, 349 F.3d at 640. Similarly, in Sheehan v. Donlen Corp., 173 F.3d 1039 (7th Cir.1999), the Seventh Circuit noted that isolated discriminatory comments can constitute direct evidence of discrimination if made contemporaneously with the discharge or if causally related to the discharge decisionmaking process. See id. at 1044 (noting that person making discriminatory remarks had authority over plaintiff, that his remarks were contemporaneous with her firing, and that his remarks were related to his motivation for the decision); see also DiCarlo, 358 F.3d 408, 417 (“[T]he fact that the comments were made by Bailey, [plaintiffs] immediate supervisor and a decision-maker, that they specifically negatively and derogatorily referenced [plaintiffs] Italian-American heritage, and that the hate-speech occurred three weeks prior to [plaintiffs] termination, all culminate in the conclusion that [plaintiff] has presented sufficient evidence of causation to withstand summary judgment.”). These cases, however, do not preclude Mr. Bowden from relying on Mr. Gavino’s discriminatory remarks as circumstantial evidence of discrimination/pretext, especially since there are facts to support Mr. Gavino’s having played a meaningful role in the decision to terminate. See, e.g., Nesbit v. Pepsico, Inc., 994 F.2d 703, 704-05 (9th Cir.1993) (stating that comment by plaintiffs supervisor that “we don’t necessarily like grey hair” was uttered in an ambivalent manner and was not" } ]

[ { "docid": "9711910", "title": "", "text": "the policy proceeds do not flow directly into the coffers of the estate, they do serve to reduce some claims and permit more extensive distribution of available assets in the liquidation of the estate. Like the policies in In re Minoco, supra, the policies here are property of Titan’s estate because the estate is worth more with them than without them. Because Counts III, IV and V seek relief regarding these policies, the bankruptcy court possesses jurisdiction over these matters. C. Related Jurisdiction — Declaratory Judgment National Union further seeks rescission of the policies, and a declaratory judgment as to the extent of coverage. A proceeding to determine National Union’s rights and obligations under the policies is “related to” Titan’s title 11 case for purposes of jurisdiction if “the outcome * * * could conceivably have any effect on the estate being administered in bankruptcy.” Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984); accord National City Bank v. Coopers and Lybrand, 802 F.2d 990 (8th Cir.1986); In re Dogpatch U.S.A., Inc., 810 F.2d 782 (8th Cir.1987). It remains to be seen whether, and to what extent, National Union’s action will affect Titan’s estate. Yet, even a proceeding which portends a mere contingent or tangential effect on a debtor’s estate meets the broad jurisdictional test articulated in Pacor. For the reasons set forth in section B, we determine that the resolution of Counts I and II could conceivably have an impact on Titan’s estate. Thus, we conclude that the bankruptcy court has jurisdiction to hear National Union’s non-core, but related claims. D. Abstention Despite our determination that the bankruptcy court could properly hear National Union’s action, we support Bankruptcy Judge Stewart’s refusal to do so. As Judge Stewart noted, “there is a limited discretion available to a bankruptcy court to require matters to be litigated in state courts even where jurisdiction exists in the bankruptcy court.” We agree that in this case, the better part of discretion counsels abstention. Abstention is appropriate for a number of reasons. First, the policy concerns which motivated other appellate and district courts to" } ]

[ { "docid": "17481306", "title": "", "text": "concluded that no bankruptcy court jurisdiction existed for this state law claim: C & L next argues that the present action “arises in” and is “related to” Title 11. C & L argues that NCB’s claim would not have arisen but for Wickes, GSK’s and GCC’s petitions for reorganization raising the question of avoidability, which is at the core of NCB’s claims. Further, C & L asserts that the present action is “related to” the bankruptcy action because the underlying dispute involves a review and clarification of the bankruptcy proceedings. We hold that the district court properly concluded that the present action was not one “arising in” or “related to” the bankruptcy proceedings. The district court relied in part on the decision of the Third Circuit in Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir.1984) (Pacor). National City Bank, slip op. at 12-13. In Pacor, the court stated that the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy.... An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action ... and which in any way impacts upon the handling and administration of the bankrupt estate. 743 F.2d at 994. We agree with the reasoning of the Pacor court and with the conclusion of the district court that the present action cannot affect the bankruptcy estate of Wickes or its subsidiaries. Accordingly, we affirm the order of the district court remanding the present action to the state court because of a lack of bankruptcy jurisdiction. Id., 802 F.2d at 993-94. Similarly, in In re Heath, 115 F.3d 521 (7th Cir.1997), the Seventh Circuit deter mined that a dispute over a fee imposed by an employer upon sending a portion of the employee/debtor’s wages to the bankruptcy trustee was an unrelated matter even though the wage deduction occurred as a result of the bankruptcy case. If, however, events occur during a bankruptcy case which would give rise to a cause" }, { "docid": "18502868", "title": "", "text": "have adopted the definition of “related to” that is supplied by the Third Circuit in Pacor, the application of that definition has produced varying results. In a case presenting an indemnification scenario similar to the one alleged here by Wolverine, the Ninth Circuit declined tb find an effect on the estate being administered in bankruptcy: In Pacor, we held that a personal injury suit between Higgins and Pacor was not related to the bankruptcy of Johns Manville Corporation (Manville). Higgins filed suit against Pacor claiming personal injuries sustained from exposure to asbestos distributed by Pacor. Pacor then filed a third party claim for indemnification against debtor Manville. The district court ruled that the bankruptcy court had jurisdiction over the Pacor-Manville suit, but not over the Higgins-Pacor suit because it was not a proceeding related to the Manville bankruptcy. We affirmed, reasoning, the outcome of the Higgins-Pacor action would in no way bind Manville, in that it could not determine any rights, liabilities, or course of action of the debtor_ Even if the Higgins-Pacor dispute is resolved in favor of Higgins (thereby keeping open the possibility of a third party claim), Manville would still be able to relitigate any issue, or adopt any position, in response to a subsequent claim by Pacor. Thus, the bankruptcy estate could not be affected in any way until the Pacor-Manville third party action is actually brought and tried. Quattrone, 895 F.2d at 926 (quoting Pacor, 743 F.2d at 995). The court in Quattrone went on to conclude, based upon the Pacor reasoning, that the outcome of the section 6672 liability suit between Phillip Quattrone and the IRS, like the suit between Higgins and Pacor, would in no way affect the debtor’s liability to the IRS under section 6672. Similarly, the outcome of this action to determine MESC’s authority to transfer the debtor’s experience rating to JOSI and to determine JOSI’s liability under the Michigan Employment Security Act (MESA), Mich.Comp.Laws Ann. § 421.1 et seq., will in no way determine any rights, liabilities, or course of action of the debtor nor affect the debtor’s liability under" }, { "docid": "20190013", "title": "", "text": "the landmark decision of Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir.1984). The Pacor court held that “the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could, conceivably have any effect on the estate being administered in bankruptcy.” Id. at 994. The court further observed that “the proceeding need not necessarily be against the debtor or against the debtor’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate.” Id. Furthermore, “the mere fact that there may be common issues of fact between a civil proceeding and a controversy involving the bankruptcy estate does not bring the matter within the scope of section 1471(b). Judicial economy itself does not justify federal jurisdiction.” Id. See In re Bobroff, 766 F.2d 797, 802 (3d Cir.1985) (rejecting argument that “related to” jurisdiction “is intended to mirror the principle of pendent jurisdiction”); see generally Susan Block-Lieb, The Case Against Supplemental Bankruptcy Jurisdiction: A Constitutional, Statutory, And Policy Analysis, 62 Fordham L.Rev. 721 (1994). The test that Judge Garth articulated in Pacor has been enormously influential. Pa-cor not only governs our analysis here, but its cogent analytical framework has been relied upon by our sister circuits more than any other case in this area of the law. The Fourth, Fifth, Eighth, Ninth and Eleventh Circuits have adopted Pacor without modification. See In re Lemco Gypsum, Inc., 910 F.2d 784, 788 (11th Cir.1990) (“We join the majority of the circuits that have adopted the Pacor formulation.”); In re Fietz, 852 F.2d 455, 457 (9th Cir.1988) (“We ... adopt the Pacor definition.... We reject any limitation on this definition; to the extent that other circuits may limit jurisdiction where the Pacor decision would not, we stand by Pacor.”); Wood, 825 F.2d at 93 (“Courts have articulated various definitions of ‘related,’ but the definition of the Court of Appeals for the Third Circuit appears to have the" }, { "docid": "9890093", "title": "", "text": "and we affirmed. In evaluating the scope of “related to” bankruptcy jurisdiction, we acknowledged that Congress intended to grant bankruptcy courts broad authority to deal expeditiously with all matters pertaining to the bankruptcy. But we also noted that this power was not without limitation. In defining the appropriate balance, we stated: The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy.... An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate. Pacor, 743 F.2d at 994 (emphasis in original) (citations omitted). Applying this test, we concluded “related to” jurisdiction did not extend to the civil proceeding between non-debtors Higgins and Pacor because, “[a]t best, [the lawsuit] is a mere precursor to the potential third party claim for indemnification by [defendant] against [the debtor].” Id. at 995. We noted that other cases finding “related to” jurisdiction over actions involving non-debtors involved contractual indemnity obligations between the debtor and non-debtor that automatically resulted in indemnification liability against the debtor. Id. (citing cases). By contrast, we found that any judgment against Pacor in the third-party action “could not itself result in even a contingent claim against Manville, since Pacor would still be obligated to bring an entirely separate proceeding to receive indemnification.” Id. As such, we concluded that because the debtor Johns-Manville could not be bound automatically by the Higgins-Pacor action, that action was not “related to” the debt- or’s Chapter 11 case. Recently we affirmed the validity of the Pacor test in In re Federal-Mogul Global, Inc., 300 F.3d 368 (3d Cir.2002). As in the current case, Federal-Mogul involved an asbestos-related bankruptcy. Thousands of individuals brought personal injury claims in state courts seeking damages for asbestos exposure to certain “friction products,” such as automobile brake pads. Plaintiffs asserted claims against both manufacturers and distributors of friction products, including" }, { "docid": "15582959", "title": "", "text": "the state court. On Pacor’s appeal, the district court affirmed with respect to the Higgins’s case against Pacor as it held that it was not “related to” the Manville bankruptcy. Pacor then appealed to us. Id. In affirming the district court’s order affirming the bankruptcy court, we articulated what became the seminal test for determining whether a civil proceeding is “related to” a bankruptcy: The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy .... An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate. Id. at 994 (internal citations omitted). Then came Resorts. We reiterate that Resorts involved a claim for professional malpractice and breach of contract brought against Price Waterhouse for accounting services performed for a litigation trust formed after the bankruptcy court issued an order confirming the Reorganization Plan. Resorts, 372 F.3d at 156-57. Almost seven years after the bankruptcy court confirmed the plan, the litigation trust brought suit against Price Water-house on account of its post-confirmation services. Id. at 159. We held that the traditional test in Pacor, a case involving claims brought pre-confirmation, was “problematic” in the “post-confirmation context” inasmuch as “it is impossible for the bankrupt debtor’s estate to be affected by a post-confirmation dispute because the debtor’s estate ceases to exist once confirmation has occurred.” Id. at 165. Thus, because confirmation of a plan in which all property of the estate is vested in the reorganized debtor eliminates the existence of the estate, there never will be jurisdiction over a post-confirmation dispute under a literal interpretation of the Pacor test. Id. In an attempt to balance Congress’s intent to grant bankruptcy courts “comprehensive jurisdiction so that they could deal efficiently and expeditiously with matters connected with the bankruptcy estate” with the jurisdictional limitations on non-Article III bankruptcy courts, id." }, { "docid": "4748195", "title": "", "text": "courts’ bankruptcy jurisdiction, judicial proceedings in a bankruptcy case are divided into two classes: “core proceedings,” as illustrated in 28 U.S.C. § 157(b)(2), and “proceedings related to a case under [the Bankruptcy Code].” 28 U.S.C. § 157(b)(2)(A)-(0) contain a non-exclusive “laundry list” of various sorts of core proceedings. Title 28 does not define the phrase “core proceeding.” In general, a core proceeding is a legal dispute between parties in interest to a bankruptcy ease, one of whom is almost always the debtor. As fixed by the very nature of the parties’ relationships to the debtor and the relief requested, core proceedings are those intrinsic to the adjustment of debtor-creditor relationships involved in bankruptcy relief. Gaslight Club, Inc. v. Official Creditors Committee, 46 B.R. 209, 211 (N.D.Ill.1985). Similarly, Title 28 does not define the term “civil proceeding ... related to [a] case under title 11”; nor does it give any examples of a related proceeding. The Eighth Circuit has held that the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankrupt cy.... An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action ... and which in any way impacts upon the handling and administration of the bankrupt estate. National City Bank v. Coopers & Lybrand, 802 F.2d 990, 994 (8th Cir.1986) (quoting Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984)). See also In re Dogpatch U.S.A., Inc., 810 F.2d 782, 786 (8th Cir.1987); In re Titan Energy, Inc., 837 F.2d 325, 329-30 (8th Cir.1988). II. Summary of Defendant’s Arguments. Defendant moves for an order dismissing this adversary proceeding on alternative grounds. First, it argues that this lawsuit is neither a core proceeding nor a related proceeding, and notes that there is no independent basis for federal-court jurisdiction .over it under the federal-question provisions of 28 U.S.C. § 1331 or the diversity-of-citizenship provisions of 28 U.S.C. § 1332. If this is the case, it would follow that the federal" }, { "docid": "10196997", "title": "", "text": "22, 51, 52 S.Ct. 285, 292, 76 L.Ed. 598 (1932)). The legislative history of BAFJA clearly indicates that “arising under” and “arising in” jurisdiction should be broadly construed so as to include any matter under which a claim is made pursuant to title 11. However, BAFJA fails to give definition to “related to” jurisdiction. A survey of the earlier Code cases indicates that prior to Northern Pipeline bankruptcy courts did not hesitate in finding a sufficient nexus between a title 11 case and a civil proceeding to confer upon itself “related to” jurisdiction. After Northern Pipeline, courts began to develop different standards to determine whether subject matter jurisdiction existed in a proceeding claimed to be “related to” a particular bankruptcy case. The usual articulation of the “related to” test requires a determination of “whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy”, In re Wood, 825 F.2d 90 at 93; Bobroff v. Continental Bank (In re Bobroff), 766 F.2d 797, 800 (3d Cir.1985); Pacor v. Higgins (In re Pacor), 743 F.2d 984, 994 (3d Cir.1984); Turner v. Ermiger (In re Turner), 724 F.2d 338, 342 (2d Cir.1983); Beebe International, Inc. v. French American Banking Corp. (In re Wedtech), 72 B.R. 313, 315 (Bankr.S.D.N.Y.1987); Geschke v. CLDC Management Corp. (In re CLDC Management Corp.), 58 B.R. 176, 179 (Bankr.W.D.Ill.1985), which will turn on the extent to which “the outcome would alter the debtor’s rights, liabilities, options or freedoms of action (whether positively or negatively) and which in any way impacts upon the handling and administration of the bankruptcy estate.” Dogpatch Properties, Inc. v. Dogpatch U.S.A., Inc. (In re Dogpatch U.S.A., Inc.), 810 F.2d 782-786 (8th Cir.1987); Pacor v. Higgins, 743 F.2d at 994. The fact that the debtor itself is not a party to the proceeding does not, without more, necessarily preclude the proceeding from qualifying as one which is “related to”. Pacor v. Higgins, 743 F.2d at 994. However, it is always the burden of the party alleging bankruptcy court jurisdiction to establish its existence over the matter in dispute. Elscint," }, { "docid": "16821546", "title": "", "text": "they are not comparable to the examples of core proceedings in 28 U.S.C. § 157(b)(2). As such, if the Court confirms the Plan, it also would adjudicate the consumer creditors’ non-core claims against Mepco through approval of the releases. Therefore, even though the Court has undisputed jurisdiction to adjudicate the issue of confirmation of the Plan, it separately must determine: (1) whether it has jurisdiction to adjudicate the consumer creditors’ claims against non-debtors such as Mepco; and (if it does have jurisdiction) (2) whether it may enter a final order or judgment on the adjudication of those claims in conjunction with confirming the Plan. A. The Court has jurisdiction to adjudicate the consumer creditors’ claims against Mepco under the “related to” jurisdictional provision. The Court has jurisdiction over a non-core proceeding if that proceeding is “related to” the bankruptcy case. 28 U.S.C. § 157(c)(1) (providing that “[a] bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11”). This Circuit has adopted the well-established “conceivable effect” test of Pacor, Inc. v. Higgins for determining whether a non-core proceeding is “related to” a bankruptcy case. Dogpatch Properties, Inc. v. Dogpatch U.S.A., Inc. (In re Dogpatch U.S.A., Inc.), 810 F.2d 782, 786 (8th Cir.1987). A non-core proceeding is “related to” a bankruptcy case if its outcome “could conceivably have any effect on the estate being administered in bankruptcy.” Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984)(emphasis in original). This includes any outcome that “could alter the debtor’s rights, liabilities, options, or freedom of action ... and which in any way impacts upon the handling and administration of the bankrupt estate.” Id. The consumer creditors’ claims against Mepco satisfy the “conceivable effect” test due to the financially entwined relationship between the Debtor and Mep-co. Under certain 2004 and 2009 agreements, upon cancellation of a VSC, the Debtor is obligated to refund and pay Mepco for unearned costs and profits, as well as late charges. In addition, the Debtor also agreed to broadly indemnify Mepco. As a consequence of these" }, { "docid": "7988534", "title": "", "text": "After some jurisdictional wrangling, the district court ruled that the Pacor-Higgins suit was “not related to” the Manville bankruptcy and therefore remanded the action to state court. Id. Noting that “the jurisdiction of the bankruptcy courts to hear cases related to bankruptcy is not without limit,” the Third Circuit Court of Appeals concluded that for the bankruptcy court to act within its statutory and constitutional limits and for subject matter jurisdiction to exist, “there must be some nexus between the ‘related’ civil proceeding and the title 11 case.” Pacor, 743 F.2d at 994. Because neither of the parties in the case was the debtor in bankruptcy, the Court questioned whether the action was “still sufficiently connected with the Manville bankruptcy estate, such that jurisdiction lies under 28 U.S.C. § [1334(b)].” Id. The Court noted: The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy. Thus, the proceeding need not necessarily be against the debtor or against the debtor’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate. On the other hand, the mere fact that there may be common issues of fact between a civil proceeding and a controversy involving the bankruptcy estate does not bring the matter within the scope of section [1334(b) ]. Pacor, 743 F.2d at 994, internal citations omitted. The Court then discussed an issue precisely on point to the matter before Judge Markovitz. The Court concluded that the outcome of the Pacor-Higgins action would in no way bind Manville, but was “at best, ... a mere precursor to the potential third party claim for indemnification by Pacor against Manville.... Any judgment received by the plaintiff Higgins could not itself result in even a contingent claim against Manville, since Pacor would still be obligated to bring an entirely separate proceeding" }, { "docid": "13689718", "title": "", "text": "relevant here, litigation between third parties that has an effect on the estate. Celotex Corp. v. Edwards, 514 U.S. 300, 308 n. 5, 115 S.Ct. 1493, 131 L.Ed.2d 403 (1995). The leading case in this area is our own Third Circuit’s Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir.1984). Pacor addressed whether an asbestos-related personal injury lawsuit against a non-debt- or was related to the Johns-Manville chapter 11 proceeding on the ground that the non-debtor defendant had asserted a third-party claim of indemnification against Johns-Manville as the original manufacturer of the asbestos. While acknowledging the wide jurisdiction granted by Congress to federal bankruptcy courts to facilitate the administration of debtors’ estates, the Court of Appeals noted that this jurisdiction is “not without limit.” “Related to” jurisdiction still requires “some nexus between the ‘related’ civil proceeding and the title 11 case,” the court explained. Id. at 994. The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy. Thus, the proceeding need not necessarily be against the debtor or against the debtor’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankruptcy estate. On the other hand, the mere fact that there may be common issues of fact between a civil proceeding and a controversy involving the bankruptcy estate does not bring the matter within the scope of section 1471(b) [now 1334(b)], [J]urisdietion over nonbankruptcy controversies with third parties who are otherwise strangers to the civil proceeding and to the parent bankruptcy does not exist. Id. at 994 (citations and internal quotation omitted)(emphasis and second alteration in original). But a valid statement of principle does not necessarily produce a usable rule, and whether a controversy “could have any effect on the estate” will not always be self-evident. In Pacor, a bare claim of common-law indemnity was not" }, { "docid": "18510123", "title": "", "text": "this court’s federal bankruptcy jurisdiction, Magistrate Sense-nich recommended that we grant defendant’s motion for referral to bankruptcy court and have the bankruptcy court address defendant’s motion for extension of time to respond to complaint. DISCUSSION The Third Circuit Court of Appeals’ definition of a related proceeding centers on “whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy.” Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984). Under this approach, a proceeding is related “if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the estate.” Id. Under this definition, even a proceeding which portends a mere contingent or tangential effect on a debtor’s estate may meet the broad jurisdictional test. In re Titan Energy, Inc., 837 F.2d 325 (8th Cir.1988). The fact that the debtor is not a party to the proceeding does not, in and of itself, pre- elude the proceeding from qualifying as one which is related to the bankruptcy case. In re Chargit, Inc., 81 B.R. 243 (Bkrtcy.S.D.N.Y.1987) citing Pacor, 743 F.2d at 994. In Pacor, which involved a product liability suit against an asbestos distributor (Pa-cor), the products liability action was found not “related to” the ongoing bankruptcy case of Johns-Manville, the asbestos manufacturer. The analysis focused upon the lack of indemnification between the asbestos manufacturer (Johns-Manville) and its distributor (Pacor). The Third Circuit Court of Appeals found that the products liability action was not “related to” the bankruptcy proceeding because a plaintiffs verdict would not, by itself, be sufficient to gain even a contingent claim against Johns-Manville. It was noted that “there would be no automatic creation of liability against Manville on account of a judgment against Pacor. Pacor is not a contractual guarantor of Manville, nor has Manville agreed to indemnify Pacor, and thus a judgment in the Higgins-Pacor action would not give rise to automatic liability on the part of the estate.” Pacor, 743 F.2d at 995. To enforce a judgment against Johns-Manville" }, { "docid": "10059802", "title": "", "text": "the non-core or “related to” jurisdiction of the bankruptcy court. 28 U.S.C. § 1334(c)(2). The Ninth Circuit has adopted the definition of “related to” jurisdiction expressed by the Third Circuit in Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3rd Cir.1984). See In re Fietz, 852 F.2d 455, 457 (9th Cir.1988). Under that formulation, a civil proceeding is “related to” the bankruptcy if its outcome could conceivably have any effect on the bankruptcy estate. The proceeding need not be against the debtor or the debtor’s property. It is sufficient if the “outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankruptcy estate.” Fietz, 852 F.2d at 457 (9th Cir.1988) (quoting Pacor, 743 F.2d at 994). The United States Supreme Court has also recognized the definition of “related to” jurisdiction formulated in Pacor. The Court noted that although Congress intended the “related to” language to evidence a jurisdictional “grant of some breadth,” it was not intended to be “limitless.” Celotex Corporation v. Edwards, 514 U.S. 300, -, 115 S.Ct. 1493, 1499, 131 L.Ed.2d 403 (1995). In Pacor, the plaintiff Higgins brought a products liability suit in state court against Pacor, who in turn filed a third party complaint impleading the Johns-Manville Corporation. Johns-Manville later filed bankruptcy. Shortly thereafter the state court severed the third-party action (Pacor against Johns-Manville) from plaintiffs action against Pacor. Pacor then filed a removal of the Higgins-Pacor lawsuit to the bankruptcy court alleging that the matter was “related to” Johns-Manville’s bankruptcy. Pacor, 743 F.2d 984, 986 (1984). On appeal, the Third Circuit Court of Appeals concluded that the Higgins-Pacor action did not fall within the “related to” jurisdiction of the bankruptcy court and affirmed the District Court’s remand of the matter to state court. At best, it is a mere precursor to the potential third party claim for indemnification by Pacor against Manville. Yet the outcome of the Higgins-Pacor action would in no way bind Manville, in that it could not determine any rights, liabilities, or course" }, { "docid": "18722654", "title": "", "text": "of reorganization would not have been approved unless the contract between Dogpatch U.S.A. and DPI was included as a part of the reorganization. Under these circumstances, the appellees’ claims can be fairly characterized as core proceedings pursuant to 28 U.S.C. § 157(b)(2). Without the contract and the guaranty, there would have been no reorganization. We need not rely, however, on either the consent to jurisdiction or jurisdiction under core proceeding because the bankruptcy court properly held that the S & Ls’ counterclaim against DPI and third-party claim against the Odoms were related to a case under chapter 11 and thus were within the jurisdiction of the bankruptcy court. For a proceeding to be “related to” a bankruptcy case for purposes of bankruptcy jurisdiction, courts require that it “have some effect on the administration of the debtor’s estate.” Zweygardt v. Colorado Nat’l Bank, 52 B.R. 229, 233 (D.Colo.1985). As the Third Circuit recently stated: [T]he test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy * * *. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action * * * and which in any way impacts upon the handling and administration of the bankrupt estate. Pacor v. Higgins, 743 F.2d 984, 994 (3rd Cir.1984) (emphasis included). See National City Bank v. Coopers and Lybrand, 802 F.2d 990 (8th Cir.1986). Here, not only would the outcome of a civil proceeding to foreclose and collect on the guaranty have an effect on the estate, it would be determinative of the rights of the parties. Under the Dogpatch contract, the debtor remained liable to the S & Ls in the event that DPI defaulted on the contract. In this action brought by the S & Ls on the Dog-patch contract, the S & Ls sought and obtained judgments against DPI, the debt- or, and the Odoms jointly and severally. Thus, these actions against the Odoms and DPI certainly would have a real and" }, { "docid": "6278446", "title": "", "text": "related-to jurisdiction, the bankruptcy court ... utilizes the generally-adopted standard set out by the Third Circuit: [T]he test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy.... Thus, the proceeding need not necessarily be against the debtor or against the debtor’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate. Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984) (emphasis in original). See In re C.AC. Jewelry, Inc., 124 B.R. at 422; In re Lanciaux, 76 B.R. at 256. See also In re Parque Forestal, Inc., 949 F.2d [504] at 509 [ (1st Cir.1991) ] (remarking that Pacor provides a “broad construction” of related-to jurisdiction, without adopting the test for all cases); In re G.S.F. Corp., 938 F.2d [1467] at 1475 [ (1st Cir.1991) ] (recognizing Pacor as the “usual articulation” of the related-to jurisdiction test); Flores Rivera v. Telemundo Group, 133 B.R. 674, 675 (D.P.R.1991) (noting that most circuits have adopted the Pacor test); Philippe v. Shape, Inc., 103 B.R. 355, 356 (D.Me.1989) (applying Pacor test); In re Videocart, Inc., 165 B.R. 740 (Bankr. D.Mass.1994) (applying Pacor test); In re Summit Airlines, Inc., 160 B.R. [911] at 922 [ (Bahkr.E.D.Pa.1993) ] (survey of circuits applying Pacor). But see In re Turner, 724 F.2d 338, 341 (2d Cir.1983) (requiring a “significant connection” to the bankruptcy estate); In re Pettibone Corp., 135 B.R. 847, 849-50 (Bankr.N.D.Ill.1992) (describing a narrower Seventh Circuit test requiring that resolution of the case “affects the amount of property available for distribution or the allocation of property among the creditors.”). In re Remington Dev. Group, Inc., 180 B.R. at 368-69 (footnote omitted); see Community Bank of Homestead v. Boone (In re Boone), 52 F.3d 958, 960 (11th Cir.1995); see also Celotex, — U.S. at-n. 5,-, 115 S.Ct. at 1498 n. 5, 1499 (citing Pacor with" }, { "docid": "18906745", "title": "", "text": "any effect on the estate being administered in bankruptcy.” Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984) (emphasis in original), quoted in In re Bobroff, 766 F.2d 797, 802 (3d Cir.1985). “An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate.” Id. However, “the mere fact that there may be common issues of fact between a civil proceeding and controversy involving the bankruptcy estate does not bring the matter within the scope of Section [1334]. Judicial economy itself does not justify general jurisdiction.” Id. In Pacor, we held that a personal injury suit between Higgins and Pacor was not related to the bankruptcy of JohnsManville Corporation (Manville). Higgins filed suit against Pacor claiming personal injuries sustained from exposure to asbestos distributed by Pacor. Pacor then filed a third party claim for indemnification against debtor Manville. The district court ruled that the bankruptcy court had jurisdiction over the Paeor-Manville suit, but not over the Higgins-Pacor suit because it was not a proceeding related to the Manville bankruptcy. We affirmed, reasoning, the outcome of the Higgins-Pacor action would in no way bind Manville, in that it could not determine any rights, liabilities, or course of action of the debtor.... Even if the Higgins-Pacor dispute is resolved in favor of Higgins (thereby keeping open the possibility of a third party claim), Manville would still be able to relitigate any issue, or adopt any position, in response to a subsequent claim by Pacor. Thus, the bankruptcy estate could not be affected in any way until the Pacor-Manville third party action is actually brought and tried. Pacor, 743 F.2d at 995. The outcome of the Section 6672 liability suit between Philip Quattrone and the IRS, like the suit between Higgins and Pacor, will in no way affect the debtor’s liability to the IRS under Section 6672. Section 6672 imposes liability on “[a]ny person required to collect, truthfully account for, and pay over” taxes who" }, { "docid": "18889867", "title": "", "text": "State forum of appropriate jurisdiction.... The term “cases under title 11” as used in section 1334(a) is a term of art signifying an action commenced in a federal district court or bankruptcy court with the filing of a petition pursuant to 11 U.S.C. §§ 301, 302, or 303. See In re Wood, 825 F.2d 90, 92 (5th Cir.1987). Accordingly, the action before us was clearly not a “case under title 11” within the meaning of section 1334(a). We do find, however, that the action was “related to” a case under section 1334(b). The circuit courts have uniformly adopted an expansive definition of a related proceeding under section 1334(b) and its substantially identical predecessor under the Bankruptcy Reform Act of 1978, 28 U.S.C. § 1471(b). As the Third Circuit explained in In re Pacor, Inc., 743 F.2d 984 (3rd Cir.1984): The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of the proceeding could conceivably have any effect on the estate being administered in bankruptcy. Thus, the proceeding need not necessarily be against the debtor or against the debt- or’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate. Id. at 994 (emphasis in original; citations omitted). The Pacor formulation has been adopted by the Fourth Circuit, see In re A.H. Robins Co., 788 F.2d 994, 1002 n. 11 (4th Cir.1985) (dicta), cert. denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986); the Fifth Circuit, see In re Wood, 825 F.2d at 93; the Eighth Circuit, see In re Dogpatch, U.S.A., Inc., 810 F.2d 782, 786 (8th Cir.1987); and the Ninth Circuit, see In re Fietz, 852 F.2d 455, 457 (9th Cir.1988). We too have accepted the Pacor articulation, albeit with the caveat that “situations may arise where an extremely tenuous connection to the estate would not satisfy the jurisdictional requirement.” In re Salem Mortgage Co., 783 F.2d" }, { "docid": "4785365", "title": "", "text": "modification of the stay, neither this Court nor the Chapter 7 trustee any longer has any interest in the Bank’s collateral. Whether or not the Bank is successful in its collection efforts will have no impact on the administration of this bankruptcy estate. As a result, the instant complaint is. thereby rendered a non-core proceeding unrelated to the bankruptcy case. 6. “The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy. Thus, the proceeding need not necessarily be against the debtor or against the debtor’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankruptcy estate.” [citations omitted.] Pacor, Inc. v. Higgins, 743 F.2d 984 (3rd Cir.1984). Pacor began as a products liability action brought by a victim of asbestosis against an asbestos supplier in the state courts of Pennsylvania. The supplier then filed a third-party complaint impleading the original manufacturer of the asbestos, the Johns-Manville Corporation. After Manville filed Chapter 11, the state court severed the third-party complaint against Manville and the suit was about to proceed to trial when Pacor, Inc., the defendant-supplier filed a petition for removal of the entire lawsuit to the U.S. Bankruptcy Court for the Eastern District of Pennsylvania and also a motion to transfer the proceedings to the U.S. Bankruptcy Court for the Southern District of New York, the forum in which the Manville bankruptcy was pending. The bankruptcy court remanded the matter, ruling that the removal petition was untimely and that the 30-day deadline for filing a removal petition could not be extended. The district court disagreed with the bankruptcy judge’s reasoning, but nevertheless remanded to the state court only that portion of the lawsuit between Mr. Higgins and Pacor, Inc., holding that it was not related to the Manville bankruptcy. The district court reversed the bankruptcy judge" }, { "docid": "12129994", "title": "", "text": "the bankruptcy court. See 28 U.S.C. § 157 (Supp. IV 1986); N.D.Cal.General Order 24 (effective Dec. 24, 1982). Thus, we first consider whether the district court had jurisdiction over Gordon’s cross-claim under Congress’s grant of jurisdiction over proceedings related to a bankruptcy case. Various circuits have developed slightly different definitions of what constitutes a “related” case under section 1471(b) and its identical successor, section 1334(b). The Third Circuit articulated what has become the dominant formulation: The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of the proceeding could conceivably have any effect on the estate being administered in bankruptcy, [citations omitted]. Thus, the proceeding need not necessarily be against the debtor or against the debtor’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate. Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984) (emphasis in original). The Fourth, Fifth and Eighth Circuits have adopted the Pacor definition without modification. See Wood v. Wood (In re Wood), 825 F.2d 90, 93 (5th Cir.1987); Dogpatch Properties, Inc. v. Dogpatch U.S.A., Inc. (In re Dogpatch, U.S.A., Inc.), 810 F.2d 782, 786 (8th Cir.1987); A.H. Robins Co., Inc. v. Piccinin (In re A.H. Robins Co., Inc.), 788 F.2d 994, 1002 n. 11 (4th Cir.) (dicta), cert. denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986). The Second, Sixth and Seventh Circuits have adopted definitions similar to the one announced in Pacor, but their formulations may deny jurisdiction in cases where the dispute is “conceivably” related to the bankruptcy estate, but that relationship is remote. See Turner v. Ermiger (In re Turner), 724 F.2d 338, 341 (2d Cir.1983); Kelley v. Nodine (In re Salem Mortgage Co.), 783 F.2d 626, 634 (6th Cir.1986); Elscint, Inc. v. First Wisconsin Fin. Corp. (In re Xonics, Inc.), 813 F.2d 127 (7th Cir.1987). We conclude that the Pacor definition best represents Congress’s intent to reduce" }, { "docid": "1585608", "title": "", "text": "to the bankruptcy court. 28 U.S.C. § 157(a) (using same “related to” phrase). The question is whether Hunnicutt’s suit against TJX for damages under the Lease is “related to” the Ames bankruptcy case which is pending before the bankruptcy court for the Southern District of New York. As the Court of Appeals for- the Second Circuit has explained: The test for determining whether litigation has a significant connection with a pending bankruptcy proceeding is whether its outcome might have any “conceivable effect” on the bankrupt estate. If that question is answered affirmatively, the litigation falls within the “related to” jurisdiction of the bankruptcy court. Publicker Indus. Inc. v. United States (In re Cuyahoga Equip. Corp.), 980 F.2d 110, 114 (2d Cir.1992) (citing Turner v. Ermiger (In re Turner), 724 F.2d 338, 340-41 (2d Cir.1983)). The Court then cited Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984) with respect to the phrase “conceivable effect.” Cuyahoga, 980 F.2d at 114. In Pacor, the Court of Appeals for the Third Circuit enunciated the following test: The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy.... Thus, the proceeding need not necessarily be against the debtor or against the debtor’s property. An action is related to the bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate. Pacor, 743 F.2d at 994 (citations & emphasis omitted). See Celotex Corp. v. Edwards, — U.S. -, - n. 6, 115 S.Ct. 1493, 1499 n. 6, 131 L.Ed.2d 403 (1995) (recognizing Pacor formulation adopted in First, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth & Eleventh Circuits). While some district courts had questioned whether the formulation in Turner of a “significant connection” was synonymous with the “conceivable effect” formulation set forth in Pacor, see, e.g., Weisman v. Southeast Hotel Properties, No. 91 Civ. 6232, 1992 WL 131080, at" }, { "docid": "2203484", "title": "", "text": "(Law.Co-op.1988); see also In re Samoset Assoc., 654 F.2d 247, 253 (1st Cir.1981); In re Pittsburgh Cut Flower Co., Inc., 118 B.R. 31, 34 (Bankr.W.D.Pa.1990). In their memorandum of law supporting their motion, the Defendants summarily dismiss a conclusion that the court has “arising in” jurisdiction over this proceeding as a core proceeding. They do not address the aspect of the complaint requesting a determination of the validity or priority of the Plaintiff’s lien. The Defendants limit their argument to the question whether this proceeding is “related to a case under title 11” over which the court has the more limited jurisdiction to “submit proposed findings of fact and conclusion of law to the district court....” See 28 U.S.C.A. § 157(c)(1) (Law.Co-op.1988). Taking this cue from the Defendants, the Plaintiff has limited its argument to the same question of “related to” jurisdiction. Both parties rely on the test for “related to” jurisdiction enunciated in Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir.1984). The court there said: The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy... .Thus, the proceeding need not necessarily be against the debtor or against the debtor’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate. 743 F.2d at 994. The Pacor test has been adopted by the fourth, fifth, eighth, ninth and eleventh circuits. See Miller v. Remira, Inc. (In re Lemco Gypsum, Inc.), 910 F.2d 784 (11th Cir.1990); American Hardwoods, Inc. v. Deutsche Credit Corp. (In re American Hardwoods, Inc.), 885 F.2d 621 (9th Cir.1989); National Union Fire Ins. Co. v. Titan Energy, Inc. (In re Titan Energy, Inc.), 837 F.2d 325 (8th Cir.1988); Wood v. Wood (In re Wood), 825 F.2d 90 (5th Cir.1987); Dogpatch Properties, Inc. v. Dogpatch U.S.A., Inc. (In re Dogpatch U.S.A., Inc.), 810" } ]

[ { "docid": "19998883", "title": "", "text": "Opinion EVERETT, Chief Judge: By special court-martial, the accused was convicted, inter alia, of unauthorized absence from the USS HARLAN COUNTY located at Naval Amphibious Base, Norfolk, Virginia, from 2300 on October 6, 1982, until October 8, 1982 — a period of approximately 2 days; and with breaking restriction to the limits of the USS HARLAN COUNTY at 2300 on October 6, 1982. In due course, this Court granted review on March 28, 1984, of the following specified issue: WHETHER THE UNAUTHORIZED ABSENCE OFFENSE FROM OCTOBER 6, 1982, UNTIL OCTOBER 8, 1982 (SPECIFICATION 1 OF CHARGE I) IS MULTIPLICIOUS FOR FINDINGS PURPOSES WITH THE BREACH OF RESTRICTION OFFENSE ON OCTOBER 6, 1982 (SPECIFICATION OF CHARGE II) AND SHOULD BE DISMISSED. UNITED STATES V. DIBELLO, 17 M.J. 77 (C.M.A.1983). On May 15, 1984, by order addressing several other cases as well, this Court reversed the decision of the United States Navy-Marine Corps Court of Military Review as to the specifications and charges affected by the granted issue and the sentence; and ... returned [the record of trial] to the Judge Advocate General ... for remand to that court for briefs ... [of] counsel and for reconsideration of the granted issue in light of our decision in United States v. Baker, 14 M.J. 361 (C.M.A.1983), and our numerous decisions and summary disposition orders based thereon; see also United States v. DiBello, 17 M.J. 77 (C.M.A.1983); United States v. Holt, 16 M.J. 393 (C.M.A. 1983); and United States v. Doss, 15 M.J. 409 (C.M.A.1983). 18 M.J. 138. In an unpublished opinion dated August 20, 1984, the Court of Military Review, reconsidering the specifications affected by the granted issue and the sentence pursuant to our order, affirmed the findings and the sentence. The court, citing DiBello and Baker, “concluded that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the accused was committed.” Some minimal, unauthorized absence appears to be implicit in virtually all breaches of restriction, see United States v. Doss, supra; but an absence of extended length is not, United" } ]

[ { "docid": "15254129", "title": "", "text": "v. Francis, supra at 427, and is complete upon inception — which is fully viable when addressing such legal issues as when the statute of limitations began to run on an unauthorized absence and whether at least a minimum absence was proved where the prosecution failed to prove a termination date — the duration of the absence cannot be ignored in resolving the issue of multipliciousness of findings. The decision of the United States Navy-Marine Corps Court of Military Review is affirmed. Judges COOK and FLETCHER concur. . In violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886. . In violation of Article 134, UCMJ, 10 U.S.C. § 934. . Additionally, appellant was convicted, contrary to his pleas, of possessing 3.45 grams of marihuana; and of committing an indecent, lewd, and lascivious act, rather than the charged offense of sodomy, contrary to Articles 92 and 134, UCMJ, 10 U.S.C. §§ 892 and 934, respectively. However, Sp CMO No. 045-82, dated March 1,1982, fails to reflect the findings by exceptions and substitutions as to the specification of Charge III. . The military judge expressly considered them multiplicious for sentencing purposes. . At that time, the Court took the position that “the legal fact of multiplicity of charges is only significant in consideration of maximum authorized punishment.” United States v. Posnick, 8 U.S.C.M.A. 201, 204, 24 C.M.R. 11, 14 (1957). This view has subsequently been repudiated. See, e.g., United States v. Doss, 15 M.J. 409 (C.M.A.1983); United States v. Baker, 14 M.J. 361 (C.M.A.1983). . This paragraph of the current Manual prescribes the following gradations of maximum punishment, depending on the length of the unauthorized absence: Absence for not more 3 days: 1 month’s confinement and partial forfeiture of pay; for more than 3 days but not more than 30 days: 6 months’ confinement and partial forfeitures; and for more than 30 days: dishonorable discharge, 1 year’s confinement; and forfeiture of all pay and allowances. Under the corresponding paragraph of the Manual for Courts-Martial, United States, 1951, however, an absence of not more than 60 days was punishable" }, { "docid": "6286730", "title": "", "text": "in the factual allegations in the specification of resisting apprehension, which the military judge correctly advised Jean were that at the time and place alleged, appellant “actively resisted” the lawfully authorized apprehension of him by the named victim “by kicking at” that victim. See para. 174a, Manual, supra. Thus, in charging this resistance of apprehension, the Government alleged all the elements of a simple assault, together with at least one other element. “[WJhere one offense contains only elements of, but not all the elements of the other offense,” the first offense is lesser included within the second. United States v. Baker, 14 M.J. 361, 368 (C.M.A.1983); accord United States v. Doss, 15 M.J. 409 (C.M.A.1983). Accordingly, one of the findings cannot stand. Id. Nevertheless, we see no prejudice inuring to appellant from charging both offenses here. Appellant’s pleas and the inquiry into those pleas establish the resisting apprehension offense, so there was no possibility that the multiplication of charges influenced the factfinder unfairly. See United States v. Sturdivant, 13 M.J. 323 (C.M.A.1982). Further, we are satisfied that appellant’s sentence was not enhanced by the failure to treat the simple assault as multiplicious with resisting apprehension. Apparently, the military judge treated the offenses as multiplicious for sentencing purposes. Moreover, even if the Government had prosecuted appellant only for the resistance offense, the nature of the resistance — the assault — necessarily would have come to light. In any event, it is unlikely, in view of all the offenses of which appellant was convicted and his prior record, that the military judge would have been disposed to treat appellant any more leniently than he did. The decision of the United States Navy-Marine Corps Court of Military Review is reversed as to Charge III and its specification. The findings of guilty of Charge III and its specification are set aside and Charge III is dismissed. In all other respects the decision is affirmed. . Additionally, appellant was charged with absence without leave for over one and one-half months; failure to repair; and drunk and disorderly on station, in violation of Articles 86 and" }, { "docid": "22281969", "title": "", "text": "pretrial detainees in a brig, segregation itself would amount to a violation of Article 13, Uniform Code of Military Justice, 10 U.S.C. § 813. A factfinder on the scene is best able to evaluate the particular situation and determine the subjective intent of those charged with operation of the facility in their treatment of a given prisoner. . In the Army, for example, judges assigned to the U.S. Army Judiciary exercise supervisory authority over military magistrates, see para. 9-2e, AR 27-10. We would assume that the decision of a magistrate adverse to a detained member could be appealed to that level, with ultimate review at trial prior to seeking extraordinary relief. . I have examined the specified issue and find it to be without merit. Appellant’s absence was not of a \"minimal duration” and, thus, is not \"fairly embraced” within an allegation of missing movement. Cf. United States v. Murray, 17 M.J. 81 (C.M.A. 1983); see United States v. DiBello, 17 M.J. 77 (C.M.A. 1983). EVERETT, Chief Judge (concurring in the result): I I concur with Judge Cox that, because the length of appellant’s unauthorized absence was of more than a “minimal duration,” it was not included in the specification alleging missing movement; and, therefore, no multiplicity existed for findings. United States v. Murray, 17 M.J. 81 (C.M.A. 1983). With respect to pretrial confinement, I agree that the military magistrate should have a responsibility not only to decide whether pretrial confinement is appropriate but also to determine whether impermissible conditions of confinement have been imposed. Thus, a servicemember in pretrial confinement who believes the conditions are unduly onerous may apply for relief from the same official who is authorized to determine whether he should be in confinement. II As to the criteria for testing whether improper conditions of pretrial confinement have been imposed, I differ somewhat from Judge Cox. Article 13, Uniform Code of Military Justice, 10 U.S.C. § 813, provides: No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest" }, { "docid": "15254272", "title": "", "text": "him on behalf of the Navy. Also, it was established that, while appellant was absent, the USS GARCIA had sailed for operations in the North Atlantic and that appellant had missed this movement. Thus, to prove that appellant had missed the movement of his ship, the Government necessarily relied on proof of appellant’s unauthorized absence from that ship — at least, on the date of the movement. Under similar circumstances, this Court held in United States v. Posnick, 8 U.S.C.M.A. 201, 204, 24 C.M.R. 11, 14 (1957), “that the offense of unauthorized absence is a necessarily included lesser offense of the offense of missing movement.” The Court reasoned: Logically, every missing movement offense includes an unauthorized absence plus other factors. These additional fac tors are circumstances that aggravate the offense of unauthorized absence. In these cases the unit, ship, or aircraft, is moving and the accused has knowledge of this movement. The offense can be further aggravated by the subjective cause of the accused’s absence — neglect or design. The fact that the absences are alleged in terms of a different span of time is not important if the absence alleged is one unit. Duration of an unauthorized absence is an aggravating circumstance but is not itself an element though in the case of an Article 86, supra, violation, the punishment depends on the aggravating factor and [it] must be alleged and proved. Id. at 203-04, 24 C.M.R. at 13-14. If we were to follow this rationale, the findings of guilty here would be multiplicious, and one of them could not stand. United States v. Doss, 15 M.J. 409 (C.M.A.1983); United States v. Baker, 14 M.J. 361 (C.M.A.1983). However, in United States v. DiBello, 17 M.J. 77 (C.M.A.1983), we reexamined the significance of the “[d]uration of an unauthorized absence” when determining the potential multipliciousness of that absence with another absence-related offense, like breach of restriction. We concluded that, while “[d]uration of an unauthorized absence ... is not ... an element” of that offense, see United States v. Posnick, supra at 204, 24 C.M.R. at 14, it cannot be ignored in" }, { "docid": "12104980", "title": "", "text": "may be found nonexistent, in no sense lessens the obligation to see that he receives those benefits that are rightly his.’ “The present case demonstrates the delays that can be encountered and appellate resources that can be expended when the requirements of Goode are ignored. Accordingly, we conclude that the purpose of Goode can be effected only if we insist upon compliance therewith.” 3 M.J. 296, 297. Discussing the Goode requirement in U. S. v. Iverson, 5 M.J. 440, 444 (C.M.A.1978) the Court said: “ * * * [W]e do not believe that a failure to permit trial defense counsel to fulfill his or her role under Goode and Palenius [U. S. v. Palenius, 2 M.J. 86 (C.M.A.1977)] can be dismissed as nonprejudicial. In United States v. Hill, supra, we declined to test for prejudice when no counsel had had the opportunity to respond to the staff judge advocate’s review.” These pronouncements from the Court of Military Appeals lead us to the conclusion that failure of a record to demonstrate that counsel for an accused was served with a copy of the staff judge advocate’s review and afforded an opportunity to reply as required by U. S. v. Goode, supra, is, alone, grounds for reversal. Additionally, in this case, there are other deficiencies in the district legal officer’s review. Specification 1 of Charge I alleges unauthorized absence from USCGC MUNRO (WHEC 724) from 2 until 20 January 1978. The specification of Charge II alleges missing the movement of USCGC MUNRO (WHEC 724) through design on 13 January 1978. These offenses were multiplicious for sentence purposes. U. S. v. Bridges, 9 U.S.C.M.A. 121, 25 C.M.R. 383 (1958). Yet the military judge did not indicate that he had considered those offenses as one in arriving at the sentence nor did the district legal officer advise the supervisory authority of the multiplicity. The sentence in this case was adjudged by the military judge and it may be presumed that he recognized the multiplicity of the offenses and treated them as one for sentencing. U. S. v. Stein, 20 U.S.C.M.A. 518, 43 C.M.R. 358" }, { "docid": "15254121", "title": "", "text": "Opinion of the Court EVERETT, Chief Judge: Appellant was tried by special court-martial on a specification alleging absence without authority “from his unit, to wit: USS SAMPSON (DDG 10), located at Norfolk Naval Shipyard, Portsmouth, Virginia,” from March 16, 1981, to April 2, 1981 ; and on another specification alleging a breach of restriction on March 16, 1981, from “the limits of USS SAMPSON (DDG 10) ... located at Norfolk Naval Shipyard, Portsmouth, Virginia.” Upon conviction of these and other charges, appellant was sentenced to a bad-conduct discharge, confinement at hard labor for 75 days, and forfeiture of $330 pay per month for 2 months. The convening and supervisory authorities approved the trial results and the United States Navy-Marine Corps Court of Military Review affirmed. This Court granted review of a specified issue inquiring whether the specifications alleging unauthorized absence and breach of restriction were multiplicious for findings purposes. 15 M.J. 379. We conclude they are not. In establishing a test for multiplicity as to findings, we stated in United States v. Baker, 14 M.J. 361, 368 (C.M.A.1983): Assuming both offenses arise out of one transaction, one offense may be a lesser-included offense of another offense in two situations: First, where one offense contains only elements of, but not all the elements of the other offense; second, where one offense contains different elements as a matter of law from the other offense, but these different elements are fairly embraced in the factual allegations of the other offense and established by evidence introduced at trial. Furthermore, “where the pleadings and evidence adduced at trial show that one offense is a lesser included offense of” the other, findings of guilty as to both offenses cannot be approved. Id. at 367; accord United States v. Doss, 15 M.J. 409 (C.M.A.1983). On the other hand, if the specifications do not meet the Baker test, there is no multipliciousness for purposes of findings. United States v. Glover, 16 M.J. 397 (C.M.A.1983); United States v. Holt, 16 M.J. 393 (C.M.A.1983). In Doss, where appellant had been charged with unauthorized absences from his ship of 45 minutes’" }, { "docid": "12127520", "title": "", "text": "US Army installation, wrongfully fraternize and otherwise wrongfully conduct himself in a manner unbecoming an officer and a gentleman, by: having sexual intercourse with ... [the enlisted woman named in the preceding specifications]; in a troop living area, to wit: Building 808, Fort Eustis, Virginia; during normal duty hours; when ... [the named woman] was attached to the same unit which he commanded for purposes of command and control; while both he and ... [the named woman] were in military uniform except for the time they were undressed for the purposes of sexual intercourse; while both he and ... [the named woman] were married to persons other than each other; and while both he and ... [the named woman] knew each other knew they were married to other persons. We conclude under the rationale of United States v. Timberlake, 18 M.J. 371 (C.M.A.1984), that the three offenses of conduct unbecoming an officer by adultery are multiplicious for findings with the three offenses of conduct unbecoming an officer by fraternizing, because the latter three specifications include all the elements of the former three specifications. We need not determine in this appeal whether “fraternization” is a punishable offense in the Army, cf. United States v. Johanns, 20 M.J. 155 (C.M.A.1985), because appellant’s adultery under the circumstances alleged constituted conduct unbecoming an officer. We are satisfied that, for purposes of sentencing, the true nature of appellant’s acts was recognized at trial. Therefore, appellant suffered no prejudice as to sentence from this multiplicity. The decision of the United States Army Court of Military Review (14 M.J. 806) is reversed as to specifications 1, 2, and 3 of Charge I. The findings of guilty thereon are set aside and those specifications are dismissed. In all other respects, the decision below is affirmed. On his own motion, the military judge dismissed as multiplicious six specifications alleging the same misconduct as violations of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934." }, { "docid": "12114634", "title": "", "text": "Opinion of the Court EVERETT, Chief Judge: A special court-martial convicted appellant of possessing, introducing, and possessing with intent to distribute, marihuana, in violation of Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 934, respectively. Thereafter, the judge sentenced him to a bad-conduct discharge, confinement for 120 days, forfeiture of $366 pay per month for 5 months, and reduction to the lowest enlisted grade. Notwithstanding a recommendation by the military judge that the discharge and portions of the confinement and forfeitures be suspended, both the convening and supervisory authorities approved the trial results. In turn, the United States Navy-Marine Corps Court of Military Review affirmed the findings and sentence in an unpublished opinion. This Court then granted review of appellant’s contention that the charges and specifications of which he was convicted were multiplicious for findings. 16 M.J. 407 (1983). We agree only as to one of the specifications, but we perceive no effect on the sentence. I According to specification 1 of Charge I, Zupancie violated Article 1151, U.S. Navy Regulations, 1973, by wrongfully possessing 672 grams of marihuana on board the USS CORAL SEA on March 3, 1982. Specification 2 alleged that he violated Article 1151 by wrongfully introducing 672 grams of marihuana on board the same vessel on that same day. The single specification of Charge II was based on the third clause of Article 134 of the Uniform Code and asserted that on March 3, 1982, appellant “intentionally and wrongfully” possessed, “with the intent to distribute, 672 grams” of marihuana, in violation of 21 U.S.C. § 841(a)(1). The specification alleging wrongful possession was included in the allegations of wrongful introduction in specification 2 of Charge I, as well as in the allegations of wrongful possession with intent to distribute in Charge II. Accordingly, the findings of guilty of specification 1 of Charge I cannot stand. United States v. Hendrickson, 16 M.J. 62 (C.M.A. 1983); United States v. Miles, 15 M.J. 431 (C.M.A. 1983); United States v. Gonnella, 14 M.J. 176 (C.M.A. 1982); United State v. Roman-Luciano, 13 M.J. 490 (C.M.A. 1982)." }, { "docid": "15254274", "title": "", "text": "resolving the issue of multipliciousness of findings, because of its legal effect on the maximum punishment imposable. Accordingly, we held that, in testing for multipliciousness of findings, charge A is not included within charge B if A contains allegations of an “aggravating circumstance” which is not a necessary element of B and which is not specifically alleged in charge B. Id. at 80 (footnote omitted). We also observed that “[a]ny other view would cause absurd results.” Id. One such result which we noted was that a servicemember who by neglect missed the movement of his ship, aircraft, or unit, and then remained absent for many months, could be found guilty only of missing movement, see United States v. Posnick, supra —for which the maximum punishment is a bad-conduct discharge and 6 months’ confinement — even though the maximum punishment for an unauthorized absence of more than 30 days is a dishonorable discharge and 1 year’s confinement. Id. at 80 (footnote omitted). DiBello also concluded: “While an absence of some minimal duration is ‘fairly embraced’ in an allegation of” missing movement, “one of extended length is not.” Accordingly, where, as here, the unauthorized absence is of more than half a year, see United States v. DiBello, supra, findings of guilty can stand as to both offenses. See also United States v. Glover, 16 M.J. 397 (C.M.A.1983), and United States v. Holt, 16 M.J. 393 (C.M.A.1983). The decision of the United States Navy-Marine Corps Court of Military Review is affirmed. Judges COOK and FLETCHER concur." }, { "docid": "12128772", "title": "", "text": "See generally United States v. Reed, 24 M.J. 80 (C.M.A.1987). The Government conceded in oral argument that this offense is multiplicious for findings with the misprision offense. See generally United States v. Baker, 14 M.J. 361 (C.M.A.1983). Since this specification will be set aside on this ground, we need not further address specified issue II. The decision of the United States Navy-Marine Corps Court of Military Review is reversed as to the modification of the consolidated specification of Charge VI and as to the consolidated specification of the Additional Charge. The modification is set aside, and the words “and fail to make the same known to the civil or military authorities as soon as possible” are restored to the specification of Charge VI (as consolidated). The findings of guilty of the Additional Charge and its consolidated specification are set aside and that charge is dismissed. In all other respects the decision is affirmed. Judge COX concurs. . Cert. denied, 479 U.S. 1011, 107 S. Ct. 656, 93 L.Ed.2d 710 (1986). . Assuming appellate review by this Court is as limited as posited by Chief Judge Everett (cf. H. Moyer, Justice and the Military § 2-780 (1972)), I fail to see how appellant suffered substantial prejudice from our disposition in this case. EVERETT, Chief Judge (concurring in part and dissenting in part): I A Hoff was convicted of being an accessory after the fact to larceny of government property (Charge I), misprision of the larceny (Charge VI), and other offenses. The Court of Military Review “conclude[d], and the Government concede[d], that Charges I and VI are multiplicious for findings, as the offenses described substantially the same misconduct in two different ways, and should be consolidated into a single specification.” (Unpub. op. at 2). The court also disapproved these words in Charge VI: “and fail to make the same known to the civil or military authorities as soon as possible.” The final result was that the Court of Military Review consolidated some of the allegations of Charge I into Charge VI and dismissed Charge I, but left Charge VI without any allegation" }, { "docid": "22281968", "title": "", "text": "to others, particularly to those who might testify against him in a future court-martial. See R.C.M. 305(h)(2)(B)(iii)(b), Manual for Courts-Martial, United States, 1984. . In his well-considered opinion in United States v. Morrison, 12 MJ. 272 (C.M.A. 1982), Chief Judge Everett noted several instances of such rules which subsequently became unnecessary because of the passage of time and the compliance of the military services. Specifically, he noted that the doctrines of general prejudice as well as the presumption of prejudice attaching to the failure of the officer exercising general court-martial jurisdiction to review a conviction within 90 days were abandoned when the Court became convinced that they were outmoded or no longer necessary. Id. at 278-79. . In this regard we note with approval the action of the Secretary of the Navy in formulating a service-wide work program request for his correctional facilities. Such written notice of the conditions of confinement to a detainee reduces the initial shock of confinement. . It may well be that in a given situation with a minimal number of pretrial detainees in a brig, segregation itself would amount to a violation of Article 13, Uniform Code of Military Justice, 10 U.S.C. § 813. A factfinder on the scene is best able to evaluate the particular situation and determine the subjective intent of those charged with operation of the facility in their treatment of a given prisoner. . In the Army, for example, judges assigned to the U.S. Army Judiciary exercise supervisory authority over military magistrates, see para. 9-2e, AR 27-10. We would assume that the decision of a magistrate adverse to a detained member could be appealed to that level, with ultimate review at trial prior to seeking extraordinary relief. . I have examined the specified issue and find it to be without merit. Appellant’s absence was not of a \"minimal duration” and, thus, is not \"fairly embraced” within an allegation of missing movement. Cf. United States v. Murray, 17 M.J. 81 (C.M.A. 1983); see United States v. DiBello, 17 M.J. 77 (C.M.A. 1983). EVERETT, Chief Judge (concurring in the result): I I concur" }, { "docid": "17157051", "title": "", "text": "STRICKLAND, Senior Judge: Appellant jumped from his ship into the.water as the ship was departing the Naval Station at Roosevelt Roads, Puerto Rico. The ship attempted to maneuver in order to pick up the appellant but was unable to do so because of the limited room in the channel. Nine minutes after jumping, the appellant was picked up by a tugboat. As a result of this incident, the appellant was charged with desertion, missing movement by design, hazarding a vessel, and jumping from a vessel into the water in violation of Articles 85, 87, 110, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 885, 887, 910, and 934, respectively. Appellant pleaded guilty to the lesser included offense of unauthorized absence, to missing movement by de sign, and to jumping from his ship. The military judge found the appellant guilty in accordance with his pleas. Immediately after announcing the findings, however, the judge dismissed Charge I (unauthorized absence) on the basis that it was multiplicious for sentencing with Charge II (missing movement). The staff judge advocate’s recommendation to the convening authority incorrectly stated that the appellant had been found guilty of the unauthorized absence offense. The court-martial order repeats this same error. The appellant initially argued that we should find this to be plain error. Subsequently, he cited supplemental authority, United States v. Depew, 35 M.J. 235 (C.M.A.1992) (order), for the proposition that this Court could only act on “properly approved findings” and, as a result, any action by us, other than setting aside the convening authority’s action, would be a nullity. Appellant further asserts that Depew effectively overrules our decision in United States v. Ruiz, 30 M.J. 867 (N.M.C.M.R.1990). The Government urges us to decide this case utilizing our analysis in Ruiz and argues that Depew has no precedential value since it is a summary disposition. First, we wish to make clear our belief that any decision by our superior Court is precedential and binding on us. See United States v. Jones, 23 M.J. 301 (C.M.A. 1987). We are bound to follow that precedent as to any" }, { "docid": "15254130", "title": "", "text": "as to the specification of Charge III. . The military judge expressly considered them multiplicious for sentencing purposes. . At that time, the Court took the position that “the legal fact of multiplicity of charges is only significant in consideration of maximum authorized punishment.” United States v. Posnick, 8 U.S.C.M.A. 201, 204, 24 C.M.R. 11, 14 (1957). This view has subsequently been repudiated. See, e.g., United States v. Doss, 15 M.J. 409 (C.M.A.1983); United States v. Baker, 14 M.J. 361 (C.M.A.1983). . This paragraph of the current Manual prescribes the following gradations of maximum punishment, depending on the length of the unauthorized absence: Absence for not more 3 days: 1 month’s confinement and partial forfeiture of pay; for more than 3 days but not more than 30 days: 6 months’ confinement and partial forfeitures; and for more than 30 days: dishonorable discharge, 1 year’s confinement; and forfeiture of all pay and allowances. Under the corresponding paragraph of the Manual for Courts-Martial, United States, 1951, however, an absence of not more than 60 days was punishable by up to 3 days’ confinement for each day’s absence — or fraction thereof — plus partial forfeitures; and an absence of more than 60 days was punishable by a dishonorable discharge, 6 months’ confinement, and total forfeitures. The current penalties were adopted in 1954. Exec. O. No. 10565, September 28, 1954, 19 Fed.Reg. 6299. . If the charge of rape specifically alleges the use of the dangerous weapon as the force by means of which the rape is perpetrated, the findings of guilty as to the aggravated assault should be set aside. United States v. Glover, 16 M.J. 397 (C.M.A.1983). See also United States v. Allen, 16 M.J. 395 (C.M.A.1983). . An aggravating circumstance is one — like duration of an absence or value of property— which would increase the maximum punishment imposable under the Table of Maximum Punishments. See para. 127c, Manual for Courts-Martial, United States, 1969 (Revised edition). . Furthermore, if the absence commenced on a particular day and the missing movement occurred at a later time during the period of the" }, { "docid": "15254273", "title": "", "text": "alleged in terms of a different span of time is not important if the absence alleged is one unit. Duration of an unauthorized absence is an aggravating circumstance but is not itself an element though in the case of an Article 86, supra, violation, the punishment depends on the aggravating factor and [it] must be alleged and proved. Id. at 203-04, 24 C.M.R. at 13-14. If we were to follow this rationale, the findings of guilty here would be multiplicious, and one of them could not stand. United States v. Doss, 15 M.J. 409 (C.M.A.1983); United States v. Baker, 14 M.J. 361 (C.M.A.1983). However, in United States v. DiBello, 17 M.J. 77 (C.M.A.1983), we reexamined the significance of the “[d]uration of an unauthorized absence” when determining the potential multipliciousness of that absence with another absence-related offense, like breach of restriction. We concluded that, while “[d]uration of an unauthorized absence ... is not ... an element” of that offense, see United States v. Posnick, supra at 204, 24 C.M.R. at 14, it cannot be ignored in resolving the issue of multipliciousness of findings, because of its legal effect on the maximum punishment imposable. Accordingly, we held that, in testing for multipliciousness of findings, charge A is not included within charge B if A contains allegations of an “aggravating circumstance” which is not a necessary element of B and which is not specifically alleged in charge B. Id. at 80 (footnote omitted). We also observed that “[a]ny other view would cause absurd results.” Id. One such result which we noted was that a servicemember who by neglect missed the movement of his ship, aircraft, or unit, and then remained absent for many months, could be found guilty only of missing movement, see United States v. Posnick, supra —for which the maximum punishment is a bad-conduct discharge and 6 months’ confinement — even though the maximum punishment for an unauthorized absence of more than 30 days is a dishonorable discharge and 1 year’s confinement. Id. at 80 (footnote omitted). DiBello also concluded: “While an absence of some minimal duration is ‘fairly embraced’ in" }, { "docid": "16330957", "title": "", "text": "Opinion of the Court PER CURIAM: In separate specifications appellant was convicted of having possessed 100 units more or less of Lysergic Acid Diethylamide (LSD) on board the USS SPERRY on or about May 18, 1982, and with having wrongfully introduced 100 units more or less of LSD into the USS SPERRY on or about May 18, 1982, in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. It appears from the allegations in each specification and from the evidence adduced at trial that the LSD possessed on board the USS SPERRY on May 18, 1982, was the same LSD introduced the same day into the same ship. Accordingly, the specification alleging wrongful possession duplicated that alleging wrongful introduction, and the finding as to the former offense cannot stand. United States v. Miles, 15 M.J. 431 (C.M.A.1983); United States v. Gonnella, 14 M.J. 176 (C.M.A.1982); United States v. Roman-Luciano, 13 M.J. 490 (C.M.A.1982); see United States v. Doss, 15 M.J. 409 (C.M.A.1983); United States v. Baker, 14 M.J. 361 (C.M.A.1983). Notwithstanding the failure of the military judge to indicate whether he treated these specifications as multiplicious for sentencing purposes, we are convinced — in light of the jurisdictional limits of the special court-martial which tried appellant, the other offenses involved, and appellant’s prior record of four nonjudicial punishments — that appellant’s sentence was not enhanced by failure to set aside the multiplicious finding. Accordingly, no relief in the sentence is required. The decision of the United States Navy-Marine Corps Court of Military Review is reversed as to specification 3 of Charge I (wrongful possession of LSD). The finding of guilty of specification 3 of Charge I is set aside, and that specification is dismissed. In all other respects the decision is affirmed. Judge COOK concurs in the result. . By pretrial agreement, the convening authority agreed to withdraw the specifications upon which appellant was tried from an Article 32 investigation and to refer them for trial by special court-martial. . Appellant also was convicted of transferring the same 100 units of LSD; use of LSD; and" }, { "docid": "12104704", "title": "", "text": "law, including specific punitive articles of the UCMJ, and that an applicable offense for the misconduct committed is not defined therein. 36 M.J. at 887. Disposition. Only so much of the finding of guilty of Specification 1 of Charge III as finds the appellant guilty of an attempted escape from custody in violation of Article 80, UCMJ, 10 U.S.C. § 880, is affirmed. The remaining findings of guilty are affirmed. The sentence has been reassessed in accordance with the principles of United States v. Peoples, 29 M.J. 426 (C.M.A.1990), and United States v. Sales, 22 M.J. 305 (C.M.A.1986), and upon such reassessment, the sentence as approved on review below is also affirmed. Senior Judge JONES concurs. . The appellant was found guilty of disrespect to NCOs, failure to obey a lawful order not to consume alcoholic beverages while under the age of 21 in the State of Hawaii, escape from custody, making a false official statement, drunk driving, assault and battery, wrongfully possessing opened containers of alcohol in a motor vehicle, drunk and disorderly, and wrongfully communicating a threat, in violation of Articles 91, 92, 95, 107, 128, and 134, UCMJ, 10 U.S.C. §§ 891, 892, 895, 907, 928, 934. . I. THE MILITARY JUDGE ERRED BY FAILING TO FIND CHARGE VII, SPECIFICATION 2, DRUNK AND DISORDERLY CONDUCT MULTIPLICIOUS FOR FINDINGS WITH THE REMAINING OFFENSES, SINCE THE REMAINING OFFENSES WERE THE BASIS FOR THE DRUNK AND DISORDERLY CONDUCT. (CITATIONS OMITTED.) II. CHARGE VII, SPECIFICATION 1, WRONGFULLY POSSESSING AN OPEN CONTAINER OF ALCOHOL IN A MOTOR VEHICLE WAS MULTIPLICIOUS FOR FINDINGS WITH THE OFFENSE OF DRIVING WHILE DRUNK SINCE THEY BOTH AROSE FROM THE SAME TRANSACTION, AND BOTH OFFENSES WERE DESIGNED TO PROTECT THE SAME SOCIETAL NORM OF PREVENTING PERSONS FROM DRINKING WHILE DRIVING. (CITATION OMITTED.) III. CHARGE II, FAILURE TO OBEY A LAWFUL ORDER BY DRINKING UNDER THE LEGAL AGE WAS MULTIPLICIOUS FOR FINDINGS WITH THE OFFENSES OF DRUNK AND DISORDERLY CONDUCT, DRIVING WHILE DRUNK AND POSSESSING AN OPEN CONTAINER OF ALCOHOL IN A MOTOR VEHICLE. (CITATION OMITTED.) IV. THE COURT-MARTIAL LACKED JURISDICTION BECAUSE THE MILITARY JUDGE WAS NOT APPOINTED" }, { "docid": "12032360", "title": "", "text": "DECISION MURDOCK, Judge: This case was submitted to us on its merits. However, we find it presents a question of multiplicity for findings which we must address. The appellant was found guilty, pursuant to his pleas, of submitting a false claim for excess overseas housing allowance and larceny of the resulting money. He was sentenced to a bad conduct discharge, confinement for six months, and reduction to airman basic. We now hold that the specification alleging the false claim was multiplicious for findings with the specification alleging larceny. This area of multiplicity is not without confusion and some apparent conflict. However, we feel confident that when the false claim alleged is the mechanism by which the larceny is committed the specifications will generally be multiplicious for findings. In an analogous case to the present one, the accused was charged with two larcenies and two bad check offenses. The accused wrote bad checks to obtain three airline tickets. The Court of Military Appeals held that where the language of the specifications makes clear that the worthless checks were the false pretense by which the appellant wrongfully obtained airplane tickets the specifications are multiplicious for findings. United States v. Allen, 16 M.J. 395 (C.M.A.1983); accord United States v. Ward, 15 M.J. 377 (C.M.A.1983) (summary disposition). The Court of Military Appeals also held a false claim and larceny of the same amount to be multiplicious for findings in United States v. Fullwood, 21 M.J. 167 (C.M.A.1985) (summary disposition). The Court did not discuss the facts of Fullwood at length, but the opinion states that the government had conceded the specifications were multiplicious for findings. The Court has also held that presenting false travel vouchers is multiplicious for findings with the larceny of the requested funds where the language of the specifications establishes that the claims were the false pretense by which the criminal stole the money. United States v. Smith, 17 M.J. 320 (C.M.A.1984) (summary disposition); United States v. Lee, 17 M.J. 321 (C.M.A. 1984) (summary disposition) (agreeing with the analysis in Smith, but holding that specifications in Lee were not multiplicious). The" }, { "docid": "15191886", "title": "", "text": "done. Conclusion Accordingly, we affirm the findings and sentence as approved by the convening authority. Senior Judge DORMAN and Senior Judge TROIDL concur. . Summary Assignment of Error III (alleging that the Secretary of the Navy Instruction prohibiting sexual harassment is unconstitutionally vague), raised pursuant to United States v. Groste-fon, 12 M.J. 431 (C.M.A.1982), is without merit and will not be further discussed. See United States v. Swan, 48 M.J. 551, 553-56 (N.M.Ct. Crim.App.1998). . Violation of, or failure to obey, a lawful general order or regulation under Article 92, UCMJ, is punishable, inter alia, by two years confinement. MCM, Part IV, 1116(e)(1). . Under Charge I, I find Specification 1 multipli-cious with Charge III, Specifications 4 and 16. Specification 2 is multiplicious with Charge II and Charge III, Specifications 5 and 15. Specification 3 [is] multiplicious with Charge II and Charge III, Specification 6. Specification 4 [is] multiplicious with Charge III, Specification 7. Specification 5 [is] multiplicious [with] Charge III, Specification] 3, Specification 8, and Specification 13. Specification 6 [is] multiplicious with Charge III, Specification[s] 9 and 14. Specification 7 [is] multiplicious with Charge III, Specification 10 and Specification 12. And Specification 8 of Charge I [is] multiplicious with Charge III, Specification 11. I said that’s multi-plicious for sentencing because all of those offenses allege the same underlying conduct of the accused. With respect to Additional Charge I, Specification 1, [it is] multiplicious for purposes of sentencing with Additional Charge II, Specification] 2. Record at 161 (emphasis added). . In Aristotelian logic, the appellant’s mixed hypothetical syllogism suffers from the “fallacy of affirming the consequent.” To be valid, the categorical premise must affirm the antecedent of the conditional premise, and the conclusion must affirm the consequent of the conditional premise. . See R.C.M. 307(c)(4)(Discussion)(\"What is substantially one transaction should not be made the basis for an unreasonable multiplication of charges against one person”). . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); United States v. Teters, 37 M.J. 370 (C.M.A.1993). . We are mindful of the rule of law which states that \"an" }, { "docid": "14945862", "title": "", "text": "his home. SFC S. agreed, in part because appellant was his superior. K.S. testified that on three occasions the appellant transported her from her home on Fort Riley to his home off post, where appellant committed the offenses. At trial, the appellant’s motion to dismiss for lack of subject matter jurisdiction was denied by the military judge. Two matters are clear. First, the offenses did not occur on a military installation. Second, there is no subject matter jurisdiction in this case unless appellant’s offenses were service connected. The law on service connection has been defined, and redefined, by the United States Supreme Court and the United States Court of Military Appeals. The present state of the law, its background, and the rationale for it, are set out in United States v. Lockwood, 15 M.J. 1 (C.M. A.1983). We find that there is sufficient evidence in this case, as outlined above, to establish that the offenses were service connected. See United States v. Mauck, 17 M.J. 1033 (A.C.M.R.1984); United States v. Wierzba, 11 M.J. 742 (A.F.C.M.R.), pet. denied, 12 M.J. 75 (C.M.A.1981). This Court agrees with appellant that the charges are multiplicious for findings and sentence. United States v. Rodriquez, 18 M.J. 363 (C.M.A.1984). The military judge considered them so for sentencing and thus no prejudice befell appellant as a result of this error. The remaining assignment of error is without merit. The findings of guilty of Charge II and its Specification (Article 134, UCMJ) are set aside. The findings of guilty of Charge I and its Specification (Article 133, UCMJ) and the sentence are affirmed. This Court finds as fact that the appellant is guilty of Charge II and its Specification. Accordingly, if any reviewing authority subsequently concludes that prejudicial error has tainted the findings of guilty of Charge I and its Specification and orders these findings set aside, the findings of guilty of Charge II and its Specification can be revived and affirmed without a rehearing. See United States v. Zupancic, 18 M.J. 387, 389 (C.M.A.1984). Senior Judge RABY concurs. Judge COHEN did not participate in the decision." }, { "docid": "15191885", "title": "", "text": "and his years of honorable service to the Navy. Appellant’s Brief of 9 Nov. 1999 at 12. We disagree. Under our Article 66(c), UCMJ, mandate, we may only affirm a sentence that we find correct in law and fact, and which we determine, based upon our review of the entire record, should be approved. In performing this important review function, we determine sentence appropriateness by giving individualized consideration to the accused on the basis of the nature and seriousness of his offenses, and upon his own character. United States v. Snelling, 14 M.J. 267, 268 (C.M.A.1982)(citing United States v. Mamaluy, 10 C.M.A. 102, 106-07, 27 C.M.R. 176, 180-81, 1959 WL 3587 (1959)). Ultimately, our job is to ensure that “justice is done and that the accused gets the punishment he deserves.” United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). After performing the review indicated above, we are fully satisfied that the appellant’s sentence was not inappropriately severe. We find the appellant’s offenses extremely serious, and are satisfied that, in this case, justice was done. Conclusion Accordingly, we affirm the findings and sentence as approved by the convening authority. Senior Judge DORMAN and Senior Judge TROIDL concur. . Summary Assignment of Error III (alleging that the Secretary of the Navy Instruction prohibiting sexual harassment is unconstitutionally vague), raised pursuant to United States v. Groste-fon, 12 M.J. 431 (C.M.A.1982), is without merit and will not be further discussed. See United States v. Swan, 48 M.J. 551, 553-56 (N.M.Ct. Crim.App.1998). . Violation of, or failure to obey, a lawful general order or regulation under Article 92, UCMJ, is punishable, inter alia, by two years confinement. MCM, Part IV, 1116(e)(1). . Under Charge I, I find Specification 1 multipli-cious with Charge III, Specifications 4 and 16. Specification 2 is multiplicious with Charge II and Charge III, Specifications 5 and 15. Specification 3 [is] multiplicious with Charge II and Charge III, Specification 6. Specification 4 [is] multiplicious with Charge III, Specification 7. Specification 5 [is] multiplicious [with] Charge III, Specification] 3, Specification 8, and Specification 13. Specification 6 [is] multiplicious with Charge III," } ]

[ { "docid": "13931561", "title": "", "text": "S.Ct. 724, 731, 94 L.Ed. 884 (1950). Thus even if these new claims were of sufficient merit to justify appellant’s continued silence, he would have to present them in the first instance to the district court. See In re Mintzer, 511 F.2d 471, 473 (1st Cir.1974). That hindsight was unable to unearth any claim of substance is clear. The contempt petition recites that appellant was ordered to testify pursuant to 18 U.S.C. §§ 6002 and 6003, which sections provide the grant of immunity, and that appellant refused to answer questions material to the grand jury’s investigation. Nothing more was needed to invoke the summary contempt procedure of 28 U.S.C. § 1826. The petition need not allege that the witness’ refusal was unjustified, since the statute requires that the witness show a “just cause” why he failed to comply with the court order. United States v. Handler, 476 F.2d 709, 713 (2d Cir.1973). Moreover, even if he could point to some technical defect in the contempt petition, appellant obviously had actual notice of the charge against him. See id. at 712. Similarly, appellant will not be heard to complain that the government’s failure to describe the specific questions he refused to answer prevented him from asserting certain defenses at the show cause hearing. Appellant knew what the questions were: he does not deny that he refused to answer them, and he can hardly deny that he was present when he refused. While a witness must be given a meaningful opportunity to present his defense at a hearing under 28 U.S.C. § 1826, United States v. Alter, 482 F.2d 1016, 1023 (9th Cir.1973), this summary procedure does not require meaningless formalities that would only serve to delay the proceedings. Appellant’s counsel was given every opportunity to make new arguments at the hearing, but never indicated any difficulty remembering the content of the grand jury’s questions'or suggested any defense along these lines. Thus there was no reason for the government to read or describe the questions. Appellant’s last two claims rest on the premise that 18 U.S.C. § 1955 attempts to enforce state" } ]

[ { "docid": "15099998", "title": "", "text": "F.2d at 728. We affirm the order in the instant case as well, not only because of the belated nature of the claim, as in Tse, but because the government, we think, was not fully responsible for the arguable deficiencies in its initial response. Sergeant McGreal was present at the contempt hearing, and the record reveals that the government was prepared to put him on the stand. Instead, following Agent Horan’s testimony, the district court deemed the government’s response sufficient and terminated the hearing. Under such circumstances, we cannot fully fault the government for not insisting on the presentation of further evidence. The order of contempt is affirmed. . A court may hold in civil contempt any grand jury witness who \"refuses to testify without just cause shown to comply with an order of the court to testify_” 28 U.S.C. § 1826(a). A showing that the questioning of such a witness was based on illegal electronic surveillance constitutes \"just cause\" for refusing to testify and precludes a finding of contempt. Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972); In re Grand Jury Proceedings, 786 F.2d 3, 7 (1st Cir.1986) (per curiam). . As here applicable, 18 U.S.C. § 3504(a) requires that, \"upon a claim\" by a grand jury witness that the questioning is based on illegal electronic surveillance, \"the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful\" surveillance. .In their affidavits, described more fully below, the several government investigators and attorneys characterize the 1985 surveillance as \"court-authorized.\" They also indicate that information derived therefrom was subsequently used at the trial of appellant's father (resulting in his conviction for narcotics offenses) — with the implication that the surveillance was determined to have been legal. The authorizing documents, however, have not been turned over to appellant for inspection as required by In re Lochiatto, 497 F.2d 803, 807-08 (1st Cir.1974); see also In re Grand Jury, 851 F.2d 499, 500 (1st Cir.1988) (per curiam); In re Mintzer, 511 F.2d 471, 472 n. 1 (1st Cir.1974) (per curiam), and no effort" }, { "docid": "940658", "title": "", "text": "reach the question of whether the proceedings on July 17, 1974, and July 19, 1974, were so summary as to deny appellant due process of law. There appears to be a question raised in this appeal as to whether appellant had retained counsel, had knowingly waived his right to counsel or was entitled to the presence of counsel during the July 17, 1974, proceedings. Any error in this regard we think was cured when the Court appointed counsel after the July 17, 1974, hearing, and, therefore, we need not now address any questions concerning appellant’s right to the effective assistance of counsel in a civil contempt proceeding. 28 U.S.C. § 1826 provides in part that any witness who refuses without just cause to comply with an order of the court to testify may summarily be ordered confined until such time as he is willing to testify. The only holding in this court which addresses civil contempt procedures brought under 28 U.S.C. § 1826 because of a refusal to testify after a grant of immunity before a Grand Jury is United States v. Handler, 476 F.2d 709 (2d Cir. 1973), in which we held that in the light of the specific provision of § 1826(a) permitting the court “summarily” to order confinement, “certain concessions to ideal process must be made.” 476 F.2d at 713. The question here is whether those “concessions” are total, permitting confinement in effect as for summary criminal contempt under Rule 42(a), Federal Rules of Criminal Procedure, or whether the “procedural regularity” of Rule 42(b) or some modified form thereof must prevail. This Court has repeatedly held that summary criminal contempt under Rule 42(a) of the Federal Rules of Criminal Procedure deprives the contemnor of procedural safeguards, and is, thereby, available only when immediate punishment is necessary to put an end to acts disrupting the proceedings. United States v. Pace, 371 F.2d 810 (2d Cir. 1967); United States v. Marra, 482 F.2d 1196 (2d Cir. 1973); United States v. Wilson, 488 F.2d 1231 (2d Cir. 1973). In Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15" }, { "docid": "8148509", "title": "", "text": "was notified that the grand jury wished him to return at the end of April, at which time he would be directed to appear in a lineup. Appellant appeared at the appointed time but refused to stand in the lineup. The district court immediately ordered appellant to comply with the grand jury directive. Although appellant had numerous motions before the court, he did not answer this order and a warrant for arrest issued the following day. Appellant surrendered himself and was released on bail. A hearing on the government’s motion for contempt was heard on May 8, after which the court determined that appellant had not demonstrated just cause for his refusal to appear in the lineup. Appellant was then incarcerated pursuant to the court’s order. Appellant raises three principal issues on appeal. First, he argues that the government did not offer sufficient evidence to the court to prove that he did not actually appear in the lineup. Second, he contends that the court erred in not allowing him to prove that the evidence he was asked to provide related to information made available to the government through an illegal wiretap. Third, appellant claims that he should have not been held in contempt because the prosecutors abused the grand jury process. We address these arguments in the order presented. Appellant’s first argument, that the government did not present sufficient evidence to prove that appellant never actually appeared in the lineup, strains credulity. The government submitted an affidavit to support its motion for a show cause order, which stated that appellant had refused to appear in the lineup when requested. At the hearing appellant had the burden to show just cause for his failure to obey the court’s order. In re Bianchi, 542 F.2d 98, 100-01 (1st Cir. 1976). Appellant then had ample opportunity to avoid contempt by showing that he has subsequently appeared in the lineup. Not only did he fail to allege this fact, but his counsel conceded that he had not obeyed the court’s order when he stated in open court that his client “has a right to" }, { "docid": "3463495", "title": "", "text": "of identity and testimony of one grand jury witness to another grand jury witness is improper), cert. denied, 436 U.S. 917, 98 S.Ct. 2261, 2262, 56 L.Ed.2d 757 (1978). Nevertheless, the usual penalty for secrecy violations has been the imposition of contempt sanctions against the government. Thus, in In re Grand Jury Investigation (Lance), 610 F.2d at 219, the government actually released witnesses’ names to the media. Even so, the court declared that a contempt citation would usually be adequate and that a person would bear a heavy burden if he sought to quash the subpoena. See United States v. Eisenberg, 711 F.2d 959 (11th Cir.1983); In re Grand Jury Subpoenas, April, 1978, 581 F.2d 1103 (4th Cir.1978), cert. denied, 440 U.S. 971, 99 S.Ct. 1533, 59 L.Ed.2d 787 (1979). It is, of course, true that if the witness can show “just cause” for not testifying, the district court should not order his incarceration. 28 U.S.C. § 1826. It is also true that the Tenth Circuit has held that if an unauthorized person is present during the grand jury testimony of a witness, that witness has just cause to refuse to testify. In re Grand Jury Proceedings (Mallory), 797 F.2d 906, 907 (10th Cir.1986). We need not pass on that issue because the holding is a far cry from the rule that appellant seeks to have us establish today. It must be acknowledged that the facts of Mallory suggest that it stands for the proposition that news coverage of a person’s appearance before the grand jury would permit a district court to find “just cause,” but, even if that were so, it is not this case. More importantly, appellant’s claim (perhaps, also, Mallory) is contrary to the principles enunciated in Dupuy v. United States, 518 F.2d 1295 (9th Cir.1975) (per curiam). In that case, the appellant declared that “his life would be endangered by his fellow prisoners if he testified....” Id. He claimed that was just cause for his refusal. We responded: No federal court in a reported decision has held that fear of retaliation is sufficient reason to refuse" }, { "docid": "15099997", "title": "", "text": "what it describes as the vague and eleventh-hour nature of appellant’s claim, the government maintains its initial disclaimer was sufficient and our call for supplementary affidavits unnecessary. Yet we need not resolve this issue, as the government’s subsequent affidavits have “put to rest any lingering doubts we had about the adequacy of [the] response.” In re Tse, 748 F.2d at 728 (footnote omitted). Our directive that the government supplement its response at the appellate level, while admittedly unusual, is not without precedent: we did the same in both Tse, id. at 728-29, and United States v. Doe, 451 F.2d 466, 467 (1st Cir.1971). In Doe, where the disclaimer was deficient prior to the case reaching this court, we vacated the contempt order with instructions that the district court could again hold the witness in contempt for refusing to testify on this ground. In Tse, by contrast, we affirmed the contempt order, citing the “eleventh hour raising of the wiretap issue and the reasonableness and arguable adequacy of the government’s attempts to meet its burden.” 748 F.2d at 728. We affirm the order in the instant case as well, not only because of the belated nature of the claim, as in Tse, but because the government, we think, was not fully responsible for the arguable deficiencies in its initial response. Sergeant McGreal was present at the contempt hearing, and the record reveals that the government was prepared to put him on the stand. Instead, following Agent Horan’s testimony, the district court deemed the government’s response sufficient and terminated the hearing. Under such circumstances, we cannot fully fault the government for not insisting on the presentation of further evidence. The order of contempt is affirmed. . A court may hold in civil contempt any grand jury witness who \"refuses to testify without just cause shown to comply with an order of the court to testify_” 28 U.S.C. § 1826(a). A showing that the questioning of such a witness was based on illegal electronic surveillance constitutes \"just cause\" for refusing to testify and precludes a finding of contempt. Gelbard v. United States, 408" }, { "docid": "3588129", "title": "", "text": "Thus, the Court squarely rejected the notion that a witness choosing the first course — compliance — should be afforded any appellate review. The witness had argued that “unless immediate review of the District Court’s order is available to [the witness], he will be forced to undertake a substantial burden in complying with the subpoena, and will therefore be ‘powerless to avert the mischief of the order.’ ” Id. at 532, 91 S.Ct. at 1582 (quoting Perlman v. United States, 247 U.S. 7, 13, 38 S.Ct. 417, 419, 62 L.Ed. 950 (1918)). The Court found that the witness was not “powerless,” however, since the second course — “resistance to th[e] order” — was always available. This course brought with it an adjudication of contempt, but also gave rise to an opportunity for appellate review. Following this latter course, then, would have allowed the witness to present his arguments: If, as he claims, the subpoena is unduly burdensome or otherwise unlawful, he may refuse to comply and litigate those questions in the event that contempt or similar proceedings are brought against him. Should his contentions be rejected at that time by the trial court, they will then be ripe for appellate review. Id. (footnote omitted). Ryan’s teaching in this respect could scarcely be clearer or more on point. Second, Congress itself has provided for appeals by contemnors that will, in some cases, occur during ongoing grand jury proceedings. In 1970, obviously long after Blair was decided, Congress enacted 28 U.S.C. § 1826, a comprehensive provision concerning recalcitrant witnesses in grand jury and judicial proceedings. The operative language of that provision empowers the District Court summarily to order the confinement of a witness when the witness “refuses without just cause to comply with an order of the court to testify or provide other information.” Id. § 1826(a). Thus, under the statutory structure now in place, a witness may raise in contempt proceedings before the district court defenses amounting to “just cause” for noncompliance with the court’s order. The witness may then secure appellate review of an adverse ruling. In the context of" }, { "docid": "14267832", "title": "", "text": "when requested by either party. See, e.g., Thom, at 740. At any rate, “the criminal contempt sanction is available ... [to] vindicate the court’s authority, see, e.g., United States v. Patrick, 542 F.2d 381, 384, 392-93 (7th Cir.1976) (four-year criminal contempt sentence imposed upon recalcitrant grand jury witness previously confined for civil contempt), cert. denied, 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1977).” Simkin, 715 F.2d at 37. AFFIRMED. . The Recalcitrant Witness Statute, 28 U.S.C. § 1826, provides: § 1826. Recalcitrant witnesses (a) Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information. No period of such confinement shall exceed the life of— (1) the court proceeding, or (2) the term of the grand jury, including extensions, before which such refusal to comply with the court order occurred, but in no event shall such confinement exceed eighteen months. (b) No person confined pursuant to subsection (a) of this section shall be admitted to bail pending the determination of an appeal taken by him from the order for his confinement if it appears that the appeal is frivolous or taken for delay. Any appeal from an order of confinement under this section shall be disposed of as soon as practicable, but not later than thirty days from the day of filing of such appeal. . While Crededio is certainly entitled to his moral beliefs, such beliefs do not alter or provide a defense to Crededio's duty to testify before the grand jury. It is a hornbook proposition that the public has a right to every man’s evidence. POSNER, Circuit Judge, dissenting. If the district judge had found that keeping Crededio" }, { "docid": "17976154", "title": "", "text": "It should also be borne in mind that, since Section 1826(a) • specifically provides for summary contempt procedure, certain concessions to ideal process necessarily must be made. “The same considerations which justify the holding of civil contempt proceedings, absent the safeguards of indictment and jury ., warrant reasonable expedition of such proceedings. . . . ” United States v. Weinberg, 439 F.2d 743, 746 (9 Cir. 1971). See also Shillitani v. United States, 384 U.S. 364, 370-71 (1966). In the light of Handler’s actual knowledge of the nature of the contempt proceedings against him, we hold that he was not denied due process by the failure to provide formal notice. III. Handler’s next claim goes to the conduct of the contempt hearing itself. In particular, he argues that, not only did the court fail to require any proof of the legitimacy of the grand jury investigation or of the materiality to that investigation of the questions asked of Handler, but that the court in fact refused to entertain the government’s offer of such proof. His contention that such conduct of the contempt hearing constituted a denial of due process is based largely on his reading of United States v. Dinsio, 468 F.2d 1392 (9 Cir. 1972), and In re Verieker, 446 F.2d 244 (2 Cir. 1971). We find both eases readily distinguishable. We hold that Handler was not denied a fair hearing. Section 1826(a) provides for confinement of a recalcitrant witness where the refusal to testify is “without just cause shown.” (emphasis added). That language seems rather clearly to place on the witness the burden of coming forward with “just cause”. In Gelbard v. United States, 408 U.S. 41 (1972), for example, the Court held that the government is required to respond to an allegation by a recalcitrant grand jury witness that the questions asked were based on information obtained by an illegal wiretap. Cf. Bacon v. United States, 466 F. 2d 1196 (9 Cir. 1972). Similarly in Dinsio, the witness' refusal to submit finger and palm print exemplars to a grand jury was based on specific constitutional objections to" }, { "docid": "17976155", "title": "", "text": "contention that such conduct of the contempt hearing constituted a denial of due process is based largely on his reading of United States v. Dinsio, 468 F.2d 1392 (9 Cir. 1972), and In re Verieker, 446 F.2d 244 (2 Cir. 1971). We find both eases readily distinguishable. We hold that Handler was not denied a fair hearing. Section 1826(a) provides for confinement of a recalcitrant witness where the refusal to testify is “without just cause shown.” (emphasis added). That language seems rather clearly to place on the witness the burden of coming forward with “just cause”. In Gelbard v. United States, 408 U.S. 41 (1972), for example, the Court held that the government is required to respond to an allegation by a recalcitrant grand jury witness that the questions asked were based on information obtained by an illegal wiretap. Cf. Bacon v. United States, 466 F. 2d 1196 (9 Cir. 1972). Similarly in Dinsio, the witness' refusal to submit finger and palm print exemplars to a grand jury was based on specific constitutional objections to the request. In the present case, on the other hand, Handler completely failed to make a prima facie showing of “just cause”. Vericker more directly addresses itself to the specific issue raised by Handler. There immunity had been granted under 18 U.S.C. § 2514 (1970) which provides for transactional immunity for witnesses in cases involving certain offenses. We reversed the civil contempt judgment on the ground that there was nothing in the questions asked to indicate that the grand jury was investigating any crime within the permissible grant of immunity. Here no such claim has been made; and, under the less restrictive provisions of Sections 6002 and 6003, none apparently could be made. In Vericker, moreover, we made the point which we regard as dispositive here: “[T]he decisions are virtually unanimous in holding or assuming that the witness may challenge whether the subject matter of a grand jury investigation is consonant with the statutory authorization for the grant of immunity and that, upon such a challenge, the Government must make at least a modest showing" }, { "docid": "9959141", "title": "", "text": "a defense; the distinction between fear and duress, we suggested, was the difference between vague unsubstantiated fears and a palpable imminent danger. To similar effect see Harris v. United States, 382 U.S. 162, 166-67, 86 S.Ct. 352, 355, 15 L.Ed.2d 240 (1965); United States v. Housand, 550 F.2d 818, 825 (2d Cir.1977). All three of these cases, however — Patrick, Harris, and Hou- sand-involved criminal rather than civil contempt. The considerations may be different in the civil setting. Maggio v. Zeitz, 333 U.S. 56, 76 n. 8, 68 S.Ct. 401, 411 n. 8, 92 L.Ed. 476 (1948). The policy against rewarding intimidation, noted earlier, may have greater application to civil contempt, and argue for a stricter standard. Yet there surely are some defenses to civil contempt, a good example being the excessive burdensomeness of a subpoena. In re Sealed Case, 827 F.2d 776, 778 (D.C.Cir.1987) (per curiam). (For a veritable catalog of defenses to civil contempt see In re Grand Jury Proceedings, 486 F.2d 85, 91 (3d Cir.1973).) The witness contempt statute itself, as we have noted, excuses the witness who has \"just cause\" for disobeying the order to testify, 28 U.S.C. § 1826(a), although the term \"just cause\" is not defined in the statute and there is no pertinent legislative history. Duress could well be regarded as a form of excessive burden on a witness ordered to testify, and therefore an apt parallel to the excessive burdensomeness of a subpoena; if so, duress might be a form of just cause. This suggestion derives color from the frequently repeated statement that \"punishment may not be imposed in a civil contempt proceeding when it is clearly established that the alleged contemnor is unable to comply with the terms of the order.\" Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 1433 n. 9, 99 L.Ed.2d 721 (1988). Not too much should be made of this, however; the quoted passage has reference to the case \"where the grand jury [having] been finally discharged, a contumacious witness can no longer be confined since he then has no further opportunity to purge himself of" }, { "docid": "3588130", "title": "", "text": "similar proceedings are brought against him. Should his contentions be rejected at that time by the trial court, they will then be ripe for appellate review. Id. (footnote omitted). Ryan’s teaching in this respect could scarcely be clearer or more on point. Second, Congress itself has provided for appeals by contemnors that will, in some cases, occur during ongoing grand jury proceedings. In 1970, obviously long after Blair was decided, Congress enacted 28 U.S.C. § 1826, a comprehensive provision concerning recalcitrant witnesses in grand jury and judicial proceedings. The operative language of that provision empowers the District Court summarily to order the confinement of a witness when the witness “refuses without just cause to comply with an order of the court to testify or provide other information.” Id. § 1826(a). Thus, under the statutory structure now in place, a witness may raise in contempt proceedings before the district court defenses amounting to “just cause” for noncompliance with the court’s order. The witness may then secure appellate review of an adverse ruling. In the context of a subpoena duces tecum, we believe the teaching of Ryan is that the witness has “just cause” when compliance would be “unduly burdensome or otherwise unlawful.” Ryan, 402 U.S. at 532, 91 S.Ct. at 1582; see also In re Brummitt, 608 F.2d 640, 643 (5th Cir.1979). In addition, it seems to us that the claim that a subpoena was applied for and issued under the signature of unauthorized persons would constitute a cognizable claim of undue burden or unlawfulness under Ryan. We are therefore convinced that appellant’s argument satisfied the “just cause” requirement set out in section 1826 for defenses that may be interposed in contempt proceedings and on appeal from orders of contempt. Third, issues analogous to appellant’s have been litigated, and thus treated as ripe, in the contempt setting. The leading example is In re Subpoena of Persico, 522 F.2d 41 (2d Cir.1975). There, a witness subpoenaed to appear before a grand jury refused to answer certain questions concerning the identity of his employees. He was (twice) held in contempt and sentenced (the" }, { "docid": "14267831", "title": "", "text": "the grand jury which would hurt, directly or indirectly, members of his family, yet includes within the ambit of family members the target of the grand jury investigation who is a non-family member. The reasons asserted by Crededio for why he will not testify are inherently inconsistent and lack credibility. The only other argument which Crededio raises for our consideration is that grand jury leaks cause him to fear for his safety and the safety of his family if he testifies. These assertions of grand jury leaks are pure speculation, supported solely by the conclusory and self-serving statements of Crededio. These unsupported allegations fail to meet the “heavy burden” which Crededio bears to establish grand jury abuse. See, e.g., Matter of the Special April 1977 Grand Jury, 587 F.2d 889, 892 (7th Cir.1978). For the reasons stated above, we conclude that the district court did not abuse its discretion in denying Crededio’s motion for release. We do, however, direct the district court to periodically evaluate Crededio’s incarceration at reasonable intervals, or, in the court’s discretion, when requested by either party. See, e.g., Thom, at 740. At any rate, “the criminal contempt sanction is available ... [to] vindicate the court’s authority, see, e.g., United States v. Patrick, 542 F.2d 381, 384, 392-93 (7th Cir.1976) (four-year criminal contempt sentence imposed upon recalcitrant grand jury witness previously confined for civil contempt), cert. denied, 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1977).” Simkin, 715 F.2d at 37. AFFIRMED. . The Recalcitrant Witness Statute, 28 U.S.C. § 1826, provides: § 1826. Recalcitrant witnesses (a) Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information. No" }, { "docid": "13992686", "title": "", "text": "were not legal claims and that the one against self-incrimination “was adequately provided for by the court’s order of immunity.” It proceeded to enter its judgment finding the witness “to be in civil contempt of this court and I commit you to the custody of the Attorney General of the United States or his duly authorized representative until such time as you will comply with the order of this court and answer the questions of the grand jury or until the further order of this court.” The cause came to us on appeal soon after the trial court’s adjudication. By order of September 9, 1975, we denied appellant’s request for a stay pending appeal, but accelerated the appellate hearing. Oral arguments were had on September 18, 1975. The requirement contained in 28 U.S.C. § 1861, that any appeal from an order of confinement under § 1826, supra, is to be disposed of not later than 30 days from the filing of the appeal, demanded the giving of a decision on September 19, 1975. On that day we affirmed the judgment by minute order. This present opinion supplements the September 19, 1975 order. I. The issue of alleged illegal telephone surveillance arises pursuant to 28 U.S.C. § 1826(a), which section authorizes a court to confine a witness to jail who has refused to answer without “just cause.” If there has been prior illegal and relevant electronic surveillance, just cause not to answer exists. Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972). The Supreme Court there recognized illegal electronic surveillance as a defense to a contempt proceeding under the above statute. Illegal interception of telephone conversations had occurred, and hence the issue whether “just cause” for the refusal of the witnesses to answer was presented. Pointing out that § 1826(a), supra, limits the adjudication of contempt to the case of a grand jury witness who has refused without just cause shown to comply with an order of the court to testify, the Court held where there is a showing that the interrogation would be based upon" }, { "docid": "17940480", "title": "", "text": "would be asked to sign names used to endorse certain checks relating to an inquiry into the witness’ tax liability. The government acceded to this representation. Apparently assuming that the evidence requested was clearly relevant, the witness requested no affidavit below. Even were we to adopt the Third Circuit’s rule in Schofield, supra at 93; but see In re Grand Jury Proceedings (Universal Mfg. Co.), 508 F.2d 684, n. 2 (8th Cir. 1975), we would hold the right to an affidavit of relevancy waived in this instance. The final contention is the assertion that the very appearance of a “target” before the grand jury for any purpose whatever is violative of his Fifth Amendment due process rights. The appellant pegs his hopes on generalized “due process” rights because the Supreme Court has clearly established that the Fifth Amendment protection against self-incrimination is not encroached upon by the requirement of providing handwriting samples, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), and, more to the point, that a grand jury witness who was a potential defendant or “target” could be required to give handwriting exemplars, United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), see also United States v. Dionisio, 410 U.S. 1, 93 S,Ct. 764, 35 L.Ed.2d 67 (1973). A Fourth Amendment claim has also been specifically rejected in this context, Dionisio at 13, 93 S.Ct. 764. In light of these cases and of the established practice they illustrate, the appellant’s assertion is reduced to just that; it has no legal merit. Having established the propriety of the district court’s decision to order the appellant’s appearance before the grand jury and production of handwriting exemplars, all that remains is an investigation of whether the witness had “just cause” for his failure to appear. Title 28 U.S.C. § 1826 provides for a summary order of confinement “whenever a witness in any proceeding before [a] grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information.” The order" }, { "docid": "7739724", "title": "", "text": "the legislative history indicate that a debtor may be denied a discharge as a result of his failure to testify only when he continues to refuse to testify after a grant of immunity. It does not indicate that denial of the debtor’s discharge is the exclusive penalty for failing to testify despite immunity. Furthermore, if the denial of discharge were the only penalty for refusing to testify, then a witness other than the debtor granted im munity under section 344 would have no incentive to testify. Obviously, this is not what Congress intended by section 727(a)(6)(B). Since the civil contempt order was proper, incarceration was an appropriate remedy. 28 U.S.C. § 1826(a) (1976) provides in pertinent part that: Whenever a witness in any proceeding before or ancillary to any court ... of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information ... the court, upon such refusal ... may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information, (emphasis added). The use of the word “any” indicates that Congress intended this section to apply to bankruptcy proceedings. Even without the statute, a court may coerce a recalcitrant witness to testify through incarceration. Uphaus v. Wyman, 360 U.S. 72, 81, 79 S.Ct. 1040, 1046, 3 L.Ed.2d 1090 (1959); In re Grand Jury Investigation (Braun), 600 F.2d 420, 422 (3d Cir.1979) (“Embedded in Anglo-American law is the inherent power of the judiciary to coerce obedience to its orders by summarily holding a recalcitrant person— such as an immunized witness who refuses to testify at a grand jury proceeding or at a trial — in civil contempt, and then imprisoning him until he complies.”). Appellant concludes his appeal by claiming that 11 U.S.C. § 344 is unconstitutional when used to compel a voluntary debtor to testify against himself, upon pain of contempt and incarceration, in a bankruptcy proceeding in which the government has no stake in the outcome. He maintains that he has a right" }, { "docid": "9534364", "title": "", "text": "argument in this appeal occurred on July 19, 1988. On that same day, we issued a summary order affirming the district court’s order and explaining that a written opinion would follow. DISCUSSION After Buckley refused to comply with the district court’s order requiring her to testify before the grand jury under a grant of immunity, the court held her in contempt and ordered her confined pursuant to 28 U.S.C. § 1826(a). That section provides “[wjhenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify ..., the court, upon such refusal ... may summarily order [that person’s] confinement ... until such time as the witness is willing to give such testimony.” 28 U.S.C. § 1826(a) (emphasis added). Under section 1826(a), it is Buckley’s burden to establish that she had “just cause” for refusing to comply with the court’s order. Buckley contends that she properly refused to testify because the statutory grant of immunity is not coextensive with her fifth amendment right against self-incrimination and thus does not adequately protect her against the potential use of her testimony in the pending state criminal action. We disagree. Buckley was granted statutory immunity by the district court pursuant to 18 U.S.C. §§ 6002-6003. Section 6002 provides, in relevant part, that “[w]henever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to ... a court or grand jury of the United States ... and the person presiding over the proceeding communicates to the witness an order issued under this part, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination[.]” 18 U.S.C. § 6002. The statute also establishes the scope of protection afforded to an individual whose testimony has been compelled, providing that: [N]o testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against" }, { "docid": "8148510", "title": "", "text": "was asked to provide related to information made available to the government through an illegal wiretap. Third, appellant claims that he should have not been held in contempt because the prosecutors abused the grand jury process. We address these arguments in the order presented. Appellant’s first argument, that the government did not present sufficient evidence to prove that appellant never actually appeared in the lineup, strains credulity. The government submitted an affidavit to support its motion for a show cause order, which stated that appellant had refused to appear in the lineup when requested. At the hearing appellant had the burden to show just cause for his failure to obey the court’s order. In re Bianchi, 542 F.2d 98, 100-01 (1st Cir. 1976). Appellant then had ample opportunity to avoid contempt by showing that he has subsequently appeared in the lineup. Not only did he fail to allege this fact, but his counsel conceded that he had not obeyed the court’s order when he stated in open court that his client “has a right to explain why he did not comply with the court order.” Appellant does not impress us with his attempt to engraft onto a summary procedure “meaningless formalities that would only serve to delay the proceedings.” Id. at 101. The next contention is. that under Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972), appellant had a right to justify his refusal to appear in the lineup by proving that the government’s request was pursuant to information procured through illegal interception of wire communication. See 18 U.S.C. § 3504. The district court rejected this contention because it ruled that the question of illegal electronic surveillance could not be raised when a grand jury witness is ordered to provide only nontestimonial evidence such as exemplars or an appearance in a lineup. We need not decide this issue here, however, because, assuming that Gelbard applies to grand jury orders to appear in a lineup, we find that the government has met its burden to respond to the witness’ allegation by denying in an affidavit" }, { "docid": "23710827", "title": "", "text": "bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent. Upon a verdict or finding of guilt the, court shall enter an order, fixing punishment.” . 28 U.S.C. § 1826: Recalcitrant Witnesses “(a) Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information. No period of such confinement shall exceed the life of (1) the court proceeding, or (2) the term of the grand jury, including extensions, before which such refusal to comply with the court order occurred, but in no event shall such confinement exceed eighteen months.” . The standards of proof are also affected. In a civil contempt action the proof of the defendants’ contempt must be clear and convincing, a higher standard than the preponderance of the evidence standard in most civil cases, but less than the beyond the reasonable doubt standard of criminal contempt proceedings. See United States v. Rizzo, 539 F.2d 458 (5th Cir. 1976). The level of proof is not at issue, however, in the instant case. . The fact that a notice was given and a hearing was conducted after the trial does not alter our conclusion. Delay of the summary contempt judgment until after the trial is proper and in some instances encouraged. Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952); In re Osborne, 344 F.2d 611, 616 (9th Cir. 1965). . We do not hold that the court can proceed under both sections (a) and (b) of Rule 42. We believe this might" }, { "docid": "3588131", "title": "", "text": "a subpoena duces tecum, we believe the teaching of Ryan is that the witness has “just cause” when compliance would be “unduly burdensome or otherwise unlawful.” Ryan, 402 U.S. at 532, 91 S.Ct. at 1582; see also In re Brummitt, 608 F.2d 640, 643 (5th Cir.1979). In addition, it seems to us that the claim that a subpoena was applied for and issued under the signature of unauthorized persons would constitute a cognizable claim of undue burden or unlawfulness under Ryan. We are therefore convinced that appellant’s argument satisfied the “just cause” requirement set out in section 1826 for defenses that may be interposed in contempt proceedings and on appeal from orders of contempt. Third, issues analogous to appellant’s have been litigated, and thus treated as ripe, in the contempt setting. The leading example is In re Subpoena of Persico, 522 F.2d 41 (2d Cir.1975). There, a witness subpoenaed to appear before a grand jury refused to answer certain questions concerning the identity of his employees. He was (twice) held in contempt and sentenced (the second time) to incarceration for the remainder of the grand jury’s term. Pérsico challenged the contempt adjudication by attacking under 28 U.S.C. § 515(a) the validity of the commission held by the “Special Attorney” who directed the grand jury’s investigation and upon whose application the subpoenas issued. In Persico’s view, the “Special Attorney’s” commission, which had been executed by an Assistant Attorney General, did not satisfy the statutory requirement that commissions contain a “specific direction” about the duties of a “Special Attorney.” To the contrary, Pérsico argued, the commission held by the “Special Attorney” constituted a “roving authority.” The Second Circuit, in a comprehensive opinion by District Judge Weinstein, examined and adjudicated the defense, rejecting it on the merits. The court did not require, as Independent Counsel would here, that Pérsico await the completion of the grand jury proceedings and be indicted before mounting any challenge to the authority under which the subpoenas issued. Other decisions are to the same effect. For example, the Eighth Circuit reached the merits of a contemnor’s defense that a" }, { "docid": "9534363", "title": "", "text": "then called to appear before the district court where the government moved that she be required to show cause why she should not be held in civil contempt for disobeying the court’s order. The district court proceeded to hold a civil contempt hearing pursuant to 28 U.S.C. § 1826(a). During the hearing, Judge Ne-vas told Buckley that his previous order granted her immunity from any use or derivative use of her grand jury testimony, and he again ordered Buckley to answer the grand jury’s questions. When she refused, Judge Nevas held her in civil contempt and ordered her committed to the custody of the United States Marshal. On June 23, 1988, Buckley filed a notice of appeal in the district court and she sought to be released on a bond pending appeal. The district court denied her request for a bond after concluding that her appeal was frivolous. The court also explained that because Buckley could be released if she complied with the court’s earlier order, she “held the keys to her own cell.”' Oral argument in this appeal occurred on July 19, 1988. On that same day, we issued a summary order affirming the district court’s order and explaining that a written opinion would follow. DISCUSSION After Buckley refused to comply with the district court’s order requiring her to testify before the grand jury under a grant of immunity, the court held her in contempt and ordered her confined pursuant to 28 U.S.C. § 1826(a). That section provides “[wjhenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify ..., the court, upon such refusal ... may summarily order [that person’s] confinement ... until such time as the witness is willing to give such testimony.” 28 U.S.C. § 1826(a) (emphasis added). Under section 1826(a), it is Buckley’s burden to establish that she had “just cause” for refusing to comply with the court’s order. Buckley contends that she properly refused to testify because the statutory grant of" } ]

[ { "docid": "5508169", "title": "", "text": "has unwillingly had the symbol of its reputation placed in the infringer’s hands is itself another example of irreparable injury, even though the infringer may be quite capable of producing a high-quality product. The injury is to plaintiff’s interest in having exclusive control over the symbol of its own reputation. Carling Brewing Co. v. Philip Morris, Inc., 277 F.Supp. 326, 335-36 (N.D.Ga.1967), citing Yale Electric Corp. v. Robertson, 26 F.2d 972, 974 (2d Cir. 1928) (L. Hand, J.). In this case, the irreparable harm is the damage which will be done to plaintiff’s mark itself. As noted above, unless a preliminary injunction is granted, plaintiff will suffer a serious dilution of its trademark by the use of that mark in conjunction with a competitor’s name and products, thereby losing the benefit of the mark’s function as a distinctive identifier of plaintiff and its products. As a result, the value of the mark to plaintiff will be greatly impaired, and re-establishment of that value will be difficult, if not impossible. This in itself is a sufficient indication'of irreparable harm to satisfy the requirement. See Hills Bros. Coffee, Inc. v. Hills Supermarkets, Inc., 428 F.2d 379, 381 (2d Cir. 1970). Defendant argues that plaintiff’s harm is not immediate. The evidence establishes that defendant is using and intends to continue using the commercials at issue. This use will extend to the New York metropolitan area, where defendant has already run its commercial and where plaintiff has already utilized its mark. So long as defendant runs its commercials, the harmful dilution persists and increases. Defendant argues that plaintiff’s eight-week delay in seeking this injunction is proof that plaintiff is not suffering immediate harm. That argument is not at all convincing. During that eight-week period plaintiff made efforts to resolve amicably the dispute with defendant, insisting at all times, however, that defendant cease using its mark. Two months is not an inordinate amount of time to delay taking drastic legal action under such circumstances. Cf. Le Cordon Bleu v. BPC Publishing Ltd., 327 F.Supp. 267, 270-71 (S.D.N.Y.1971). I am satisfied that the harm to plaintiff" } ]

[ { "docid": "14763814", "title": "", "text": "then the mark should be regarded as abandoned, despite the purely self-serving testimony of the user that he has some vague intention to resume use at some indefinite time in the future.” McCarthy § 17:13. Here, plaintiff has adduced uncontroverted evidence showing that the goodwill attached to the fifty-year-old Egg Harbor name was alive and well at the time DiDonato began using the name. Egg Harbor boats were continuing to be sold, and the buying public had little information about .who the true owner of the trademark was, leading to the conclusion that most of the relevant market was oblivious to the change in ownership, and still associated the EGG HARBOR name with same manufacturer of boats that had been selling such yachts all along. Without more evidence that the market no longer associated Egg Harbor with Marine Acquisitions or its successors in interest, the Court finds that defendants have failed to meet their burden of showing that the one year lag between closure and the appointment of the receiver supports a finding of abandonment. Therefore, defendants are unlikely to prevail on a loss-of-goodwill theory, or any other abandonment theory, at trial. The Court finds that plaintiff has demonstrated a likelihood of success on the merits, that it is the true owner of the EGG HARBOR mark, and has therefore satisfied the first requirement for preliminary injunctive relief. 2. Irreparable Harm The second factor which a court must consider before granting preliminary injunctive relief is the extent to which the movant will suffer irreparable harm if preliminary injunctive relief is denied. “Grounds for irreparable injury include loss of reputation, loss of trade, and loss of goodwill.” Pappan Enterprises, Inc. v. Hardee’s Food Systems, Inc., 143 F.3d 800, 805 (3d Cir.1998). Irreparable injury can also be based on the likelihood of confusion over trademark. Once the likelihood of confusion caused by trademark infringement has been established, the irreparable injury follows as a matter of course. Id. In this case, plaintiff EH Yacht LLC and defendant Egg Harbor LLC both have valid claims of irreparable harm. Both sides are presently operating as" }, { "docid": "16330491", "title": "", "text": "the trial court’s finding of a threat of irreparable harm based on evidence the defendants, former sales agents of the plaintiff insurance company, were actively soliciting business from its policy holders in violation of the restrictive covenant). The Eighth Circuit Court of Appeals has recognized that where individuals violate a valid restrictive covenant and no injunction issues, the plaintiff must file a separate lawsuit for damages each time one of the violators solicits away another customer or the plaintiff risks losing all of its customers and goodwill. N.I.S. Corp., 724 F.2d at 710. This court has recognized that, following N.I.S. Corp., “[i]f the restrictive covenants at issue prove to be valid and enforceable, continued violation of the covenants will cause the plaintiff to suffer some irreparable harm to goodwill and its established relationships.” Moore Bus. Forms, Inc., 953 F.Supp. at 1063. Likewise, the Iowa Supreme Court has determined the injury to a plaintiff “would be irreparable in the absence of an injunction [where], the customers [the defendant] pirated from the company would be permanently lost.” Presto-X-Company v. Ewing, 442 N.W.2d 85, 89 (Iowa 1989). Therefore, the Iowa Supreme Court opined an injunction was the sole method of returning the employer to the position it would have been in if the employee had not breached the restrictive covenant. Id. The court finds that AEFA has shown irreparable harm will occur if the preliminary injunction is not granted. Money damages will not adequately compensate AEFA for any damages it suffers due to the loss of its clients and employees prior to the expiration of the one-year restrictive covenant. AEFA has shown it will suffer irreparable harm in the absence of an injunction because the customers and employees Yantis solicited to leave AEFA with him will be permanently lost. See id. Furthermore, AEFA has shown that if the restrictive covenant in the Franchise Agreement is ultimately determined to be valid, Yantis’ continued violation of the restrictive covenant will .cause AEFA to suffer irreparable harm to its goodwill and its established relationships with clients. See N.I.S. Corp., 724 F.2d at 710; Moore Bus. Forms," }, { "docid": "543630", "title": "", "text": "identical. The parties contest all six of the remaining applicable elements. Of those six, the most important first element, similarity of the marks, also indicates confusion is likely. Elements (2), (4) and (6) further tilt the scale in favor of a finding of likelihood of confusion. Plaintiffs mark, as an arbitrary mark with high consumer recognition value, is relatively strong both conceptually and commercially. In addition, instances of actual confusion followed closely in time upon defendant’s commencing use of its similar mark. Elements (3) and (5), however, weigh against finding consumers are likely to confuse the two marks. Because the products involved are retail mortgages, consumers are expected to use greater care in making a purchase. Furthermore, defendant has not used its mark in bad faith. The Court finds on the preliminary injunction record that despite defendant’s good faith use of its mark, the similarity between the two marks has caused confusion between them and is likely to cause more confusion in the future. The greater attention which consumers are expected to pay has not prevented the instances of actual confusion demonstrated by plaintiff. In sum, the Court finds plaintiff is likely to succeed on the merits after trial for three reasons: first, plaintiffs mark is valid and protectable; second, plaintiff is the owner of its mark; and third, defendant’s use of its mark to identify its mortgages is likely to create confusion concerning their source and the affiliation, connection or sponsorship between plaintiff and defendant. B. Irreparable Harm to the Parties The second and third factors to be considered in determining whether to provide pre liminary injunctive relief are the extent to which plaintiff is suffering irreparable harm, and the extent to which defendant will be irreparably harmed if the preliminary injunction is granted. “Irreparable injury may be shown by ‘loss of control of reputation, loss of trade ... loss of goodwill,’ possibility of confusion, and most importantly in a suit for infringement of a trade or service mark, ‘infringement amounts to irreparable injury as a matter of law.’ ” Accu Personnel, 823 F.Supp. at 1173 (quoting Jiffy Lube," }, { "docid": "22165908", "title": "", "text": "grant a preliminary injunction are apparent on the record before us”). IV. IRREPARABLE HARM The district court held that Kos had not shown it would suffer irreparable harm absent an injunction because Kos’s product had been on the market “less than two years.” JA at 11. The court apparently deemed this an insufficient time in which to establish the goodwill needed to show such harm, as compared with the “over sixteen years” during which the goods were marketed in the case on which Kos relied. Id. (comparing Merrell-National Labs., Inc. v. Zenith Labs., Inc., 194 U.S.P.Q. 157, 161 (D.N.J.1977)). “Grounds for irreparable injury include loss of control of reputation, loss of trade, and loss of good will.” Pappan Enters., Inc. v. Hardee’s Food Sys., Inc., 143 F.3d 800, 805 (3d Cir.1998). Lack of control over one’s mark “creates the potential for damage to ... reputation[, which] constitutes irreparable injury for the purpose of granting a preliminary injunction in a trademark case.” Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 196 (3d Cir.1990). Thus, “trademark infringement amounts to irreparable injury as a matter of law.” S & R Corp. v. Jiffy Lube Int’l, Inc., 968 F.2d 371, 378 (3d Cir.1992); see also Times Mirror Magazines, Inc. v. Las Vegas Sports News, L.L.C., 212 F.3d 157, 169 (3d Cir.2000) (“potential damage to ... reputation or goodwill or likely confusion between parties’ marks” is irreparable injury). “[0]nce the likelihood of confusion caused by trademark infringement has been established, the inescapable conclusion is that there was also irreparable injury.” Pappan, 143 F.3d at 805. The district court’s erroneous holding that Kos had not proven that it was likely to succeed on its trademark claims deprived Kos of the benefit of this rule. As we have already found that Kos has shown a likelihood of success, we hold it is entitled to a presumption that it will suffer irreparable harm absent an injunction. We see nothing in the record that could overcome this presumption. Although we need not defer to the district court’s holding since it was premised on an error" }, { "docid": "14763815", "title": "", "text": "Therefore, defendants are unlikely to prevail on a loss-of-goodwill theory, or any other abandonment theory, at trial. The Court finds that plaintiff has demonstrated a likelihood of success on the merits, that it is the true owner of the EGG HARBOR mark, and has therefore satisfied the first requirement for preliminary injunctive relief. 2. Irreparable Harm The second factor which a court must consider before granting preliminary injunctive relief is the extent to which the movant will suffer irreparable harm if preliminary injunctive relief is denied. “Grounds for irreparable injury include loss of reputation, loss of trade, and loss of goodwill.” Pappan Enterprises, Inc. v. Hardee’s Food Systems, Inc., 143 F.3d 800, 805 (3d Cir.1998). Irreparable injury can also be based on the likelihood of confusion over trademark. Once the likelihood of confusion caused by trademark infringement has been established, the irreparable injury follows as a matter of course. Id. In this case, plaintiff EH Yacht LLC and defendant Egg Harbor LLC both have valid claims of irreparable harm. Both sides are presently operating as yacht builders under the Egg Harbor flag, thus leading to inevitable confusion in the marketplace over who is the rightful owner of the Egg Harbor mark. Indeed, both boat makers are scheduled to appear at the National Marine Manufacturers Association boat show, in Miami, Fla., one month hence, and the resulting confusion has led to the possibility that one or both companies will be removed from the show. Irreparable harm is further evident from the present confusion of the Egg Harbor post office over should receive mails addressed to “Egg Harbor Yacht Co.” Without its mail, neither company can effectively communicate with fellow trade professionals, customers, and associates. The resulting loss of goodwill, trade, and damage to reputation constitutes irreparable harm as a matter of law. The abundance of irreparable harm present in this case therefore supports preliminary in-junctive relief. Further, plaintiff has demonstrated that defendants have sewn seeds of confusion by claiming to have “become the owner of Egg Harbor” hoping “to steer the company back to the top,” as mentioned above. DiDonato’s website" }, { "docid": "6519243", "title": "", "text": "of success on the merits of its deceptive trade practices claims under 15 U.S.C. §. 1125(a)(1)(B) and Minn.Stat. § 325D.44, subd. 1(6) and (7). B. Irreparable Harm 3M alleges that there will be irreparable harm to its reflective materials business if defendants are allowed to continue selling its defective products to 3M customers. In trademark cases, courts may presume irreparable harm when a likelihood of confusion is demonstrated. Calvin Klein Cosmetics v. Lenox Laboratories, 815 F.2d 500, 505 (8th Cir.1987); General Mills, Inc. v. Kellogg Co., 824 F.2d 622 (8th Cir.1987). The evidence of customer confusion presented in this case was not strong, and only a clear showing of confusion generates the presumption of irreparable harm. Plaintiff has demonstrated, however, that sales of the non-genuine goods sold to defendants and bearing its trademarks may cause it irreparable harm. Courts have found the sale of trademarked products which are defective to create the possibility of damage to goodwill and reputation. Ford Motor Co., 25 U.S.P.Q.2d at 1055. In evaluating the threat of irreparable harm, courts may also consider the potential loss of control over the quality of plaintiff’s product and the risk of damage to a plaintiffs reputation and trademark from the continued use of an infringing mark. Woodroast, 793 F.Supp. at 918. The Court finds that, as to the non-genuine goods, plaintiff has demonstrated that the loss of control over the quality of its product risks damage to its reputation and trademark. C. Balance of the Harms This factor requires the Court to consider any possible harm to the defendant from granting a preliminary injunction and to balance it with the harm to the plaintiff if the plaintiff is denied preliminary relief, but is later successful on the merits. In essence, this factor requires the Court to balance the equities in considering what type of temporary relief, if any, is warranted under the unique factual circumstances presented in this case. Plaintiff has demonstrated a likelihood of success at proving trademark infringement and is entitled to preliminary relief with respect to the non-genuine materials. On the other hand, plaintiff sold those" }, { "docid": "6742820", "title": "", "text": "to it.” Ameritech v. American Information Technologies Corp., 811 F.2d 960, 965 (6th Cir.1987). Plaintiff contends that Defendant’s use of the Big Boy logo is likely to tarnish the distinctiveness of the mark as Plaintiff is unable to control the quality or image presented by Defendant’s goods offered under the identical mark. Noting the confusion factors argued above, and, in particular, the similarity of the parties’ goods, the Court finds that Defendant’s use of the mark will likely result in dilution of it. That Plaintiff once licensed Defendant to supply coffee is of no moment. For these reasons, the Court finds that there is a substantial likelihood of success on the trademark dilution claim. C. Irreparable Harm The second showing a party seeking in-junctive relief must make is that it would suffer irreparable injury absent the relief sought. See Elby’s Big Boy, 670 F.2d at 651. Likelihood of dilution “automatically” establishes irreparable harm, because “[dilution is itself an injury which [cannot] be recompensed by money damages.” Nabisco, Inc. v. PF Brands, Inc., 191 F.3d 208, 214 (2nd Cir.1999) (citations omitted). Additionally, a substantial financial interest can satisfy the irreparable harm requirement for issuance of a preliminary injunction. Gougeon Bros., 708 F.Supp. at 817 n. 2 (citing Elby’s Big Boy, 670 F.2d at 651). Plaintiff asserts that it has spent enormous amounts of money promoting the Big Boy mark and notes that no damages can ever compensate for the lost goodwill resulting from Defendant’s unauthorized use of the mark in connection with “cheap” coffee sold in “undesirable outlets.” Furthermore, Plaintiff argues that if Defendant’s use is allowed to continue, Plaintiff will lose control over the public’s perception of the reputation of the mark. The Court finds Plaintiffs argument persuasive, and further finds that the fact of dilution will cause Plaintiff to suffer irreparable harm absent a preliminary injunction. D. Balance of Harm In this case, Plaintiff is the only one that will continue to be injured without issuance of relief. Defendant has not even presented an argument that an injunction will cause it substantial harm. Plaintiff points Out that Defendant has" }, { "docid": "14886901", "title": "", "text": "of its MUSCLE MILK® RTD nutritional product has attained a secondary meaning. 3. Likelihood of Consumer Confusion For the same reasons as discussed above under plaintiffs trademark infringement claim, the court likewise finds that CS has demonstrated a likelihood of confusion with respect to VPX’s use of a trade dress confusingly similar to plaintiffs. In sum, for all of the above reasons, plaintiff has also shown a likelihood of success in proving its trade dress infringement claim. II. Irreparable Harm. To be entitled to injunctive relief, it is not sufficient that plaintiff demonstrate a likelihood of success on the merits of its claims. Plaintiff must also demonstrate a likelihood that absent the injunction, it will be irreparably harmed by defendant’s alleged infringing conduct. Winter, 129 S.Ct. at 375-76; Volkswagen AG, 2009 WL 928130 at *6 (recognizing that the standard under Winter requires that a plaintiff “demonstrate, by the introduction of admissible evidence and with a clear likelihood of success that the harm is real, imminent and significant, not just speculative or potential”). In trademark cases, courts have found irreparable harm in the loss of control of a business’ reputation, a loss of trade and loss of goodwill. Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 195 (3rd Cir.1990). Trademarks serve as the identity of their owners and in them resides the reputation and goodwill of their owners. Thus, if another person infringes the marks, that person borrows the owner’s reputation, whose quality no longer lies within the owner’s control. Id. A trademark owner’s loss of the ability to control its marks, thus, creates the potential for damage to its reputation. Id. at 196. “Potential damage to reputation constitutes irreparable injury for the purpose of granting a preliminary injunction in a trademark case.” Id.; See also Apple Computer, Inc. v. Formula Int’l Inc., 725 F.2d 521, 526 (9th Cir.1984) (finding irreparable injury where “district court could reasonably have concluded that continuing infringement would result in loss of control over Apple’s reputation and loss of good will”). Here, plaintiff submits evidence to establish a likelihood that if VPX" }, { "docid": "8702983", "title": "", "text": "successful.” Wynn II, 943 F.2d at 600 (internal quotation marks and citation omitted). Here, Plaintiff has demonstrated a likelihood of confusion based upon five of the eight factors: (1) the strength Plaintiffs mark; (2) relatedness of the goods; (3) similarity of the marks; (6) likely degree of purchaser care; and (7) Defendant’s intent. As noted above, the Court’s finding that Defendant’s infringement was intentional alone can support a finding of a likelihood of confusion. See Wynn I, 839 F.2d at 1188— 89 (internal quotation marks and citation omitted). In addition, the Court found that the remaining three factors, (4) evidence of actual confusion; (5) marketing channels used; and (8) the likelihood of expansion of the product lines, did not weigh heavily against the finding of a likelihood of confusion. Therefore, the Court concludes that Plaintiff has established a likelihood of success on the merits of its Lanham Act claims. 2. Whether Plaintiff Would Suffer Irreparable Injury Without an Injunction “In general, a party seeking an injunction must show that absent the injunctive relief, he would suffer irreparable harm.” Wynn II, 943 F.2d at 608. Plaintiff asserts that a finding of a likelihood of confusion establishes irreparable harm to Plaintiff. The court in Wynn II observed that “a number of lower courts have held that in the context of an in fringement action, ‘[a] finding of irreparable injury ordinarily follows when a likelihood of confusion or possible risk to reputation appears.’ ” Wynn II, 943 F.2d at 608 (citations omitted). Moreover, “[t]he irreparable injury flows ‘both from the potential difficulty of proof of plaintiffs damages, and also from the impairment of intangible values.’ ” Id. (citation omitted); see also Standard & Poors Carp. v. Commodity Exch., Inc., 683 F.2d 704, 708 (2d Cir.1982) (noting that “[i]n the preliminary injunction context [of a trademark action], a showing of likelihood of confusion as to source or sponsorship establishes the requisite likelihood of success on the merits as well as risk of irreparable harm”). This Court concludes that, because Plaintiff has established a likelihood of confusion, Plaintiff has also satisfied a showing of irreparable" }, { "docid": "2239419", "title": "", "text": "a legitimate competitive advantage and reduced consumer’s’ incentive to select Tylenol rather than Advil. This is analogous to a Lanham Act trademark dispute. An infringing mark, by its nature, detracts from the value of the mark with which it is confused. In that context, we recently confirmed that irreparable harm will be presumed. Consequently, the district court did not err in presuming harm from a finding of false or misleading advertising. Id. (citations omitted); see also Abbott Labs., 971 F.2d at 16 (“This presumption, it appears, is based upon the judgment that it is virtually impossible to ascertain the precise economic consequences of intangible harms, such as damage to reputation and loss of goodwill, caused by such violations.”). The justification for applying this presumption, therefore, is twofold: (1) a misleading or false comparison to a specific competing product necessarily causes that product harm by diminishing its value in the mind of the consumer, similar to trademark infringement cases; and (2) the harm necessarily caused to reputation and goodwill is irreparable because it is virtually impossible to quantify in terms of monetary damages. Although we have not applied a presumption of irreparable harm to a false advertising case, we have repeatedly held, prior to eBay and Winter, that a plaintiff alleging a Lanham Act trademark infringement claim is entitled to a presumption of harm when she demonstrates a likelihood of success on the merits. See Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 726 (3d Cir.2004) (noting that “trademark infringement amounts to irreparable injury as a matter of law” (quotation marks omitted)); see also Opticians, 920 F.2d at 196. In Opticians, we concluded that trademark infringement constitutes a per se injury because it inhibits the owner’s “ability to control its own ... marks, which in turn creates the potential for damage to its reputation. Potential damage to reputation constitutes irreparable injury for the purpose of granting a preliminary injunction in a trademark case.” 920 F.2d at 196; see also S & R Corp. v. Jiffy Lube Int’l, Inc., 968 F.2d 371, 378 (3d Cir.1992) (noting that “[gjrounds for irreparable injury" }, { "docid": "13723487", "title": "", "text": "risk. See National Rural Electric Cooperative Association v. National Agricultural Chemical Association, 1992 WL 477020, *4 (D.D.C. Nov. 25, 1992). Based upon an assessment of the relevant factors, the Court concludes that plaintiff has demonstrated a likelihood of success on the merits. B.Irreparable Injury Trademark infringement raises a presumption of irreparable harm. See Crime Control, Inc. v. Crime Control, Inc., 624 F.Supp. 579, 581 (D.D.C.1984); Sears, Roebuck & Co. v. Sears Financial Network, 576 F.Supp. at 864. MTA argues that it will suffer irreparable injury to the goodwill and reputation associated with its trademark by virtue of the fact that it has no control over the quality of Go Wireless Now!, but will become associated with Go Wireless Now! as a result of consumer confusion. CTIA attempts to rebut the presumption of harm by arguing that claims of likely harm are speculative and by pointing out that MTA has previously sought out association with CTIA. These arguments are unpersuasive in light of the fact that continued use of the Go Wireless Now! mark could lead to dilution of the distinctiveness of the WirelessNOW trademark and loss of control over its reputation, harms not compensable in money damages. C.Balance Of Harms Defendant contends that it has invested substantial sums in its Go Wireless Now! service and that it will suffer serious financial injury if a preliminary injunction is issued. The Court is not persuaded that the injury to CTIA is as great as forecast by its attorneys. The issuance of a preliminary injunction against use of the mark Go Wireless Now! would not prevent CTIA from continuing to provide the service. It would merely require CTIA to find another way to identify the service. Moreover, the balance of harms cannot favor a defendant whose injury results from the knowing infringement on the plaintiffs trademark. Otherwise, every infringer who invested large sums of money in the unlawful activity could shield its wrongdoing. The Court concludes that the balance of the harms favors the granting of a preliminary injunction. D.Public Interest Defendant argues that it is in the public interest that the services" }, { "docid": "16330488", "title": "", "text": "in attempting to recover the client files. Therefore, the court finds AEFA has demonstrated the likelihood of success on the merits of its conversion claim. 4. Unfair Competition Under Iowa law, “[t]he doctrine of unfair competition is based on the principle of common business integrity. It goes to the question of a defendant’s methods and representations in marketing his products, not to his right to manufacture or produce them.” Basic Chemicals, Inc. v. Benson, 251 N.W.2d 220, 231 (Iowa 1977) (citing B.H. Bunn Co. v. AAA Replacement Parts Co., 451 F.2d 1254, 1263 (5th Cir.1971)). The Iowa Supreme Court has recognized, “ ‘[t]he essence of unfair competition consists in palming off, either directly or indirectly, one person’s goods as the goods of another, and while this involves an intent to deceive, it is not necessary to prove intent by direct evidence, where it is clearly to be inferred from circumstances.’ ” Id. (quoting Johnson Gas Co. v. Reliable Gas Co., 233 Iowa 641, 10 N.W.2d 23, 27 (Iowa 1943) (internal quotation omitted)). In its Complaint, AEFA merely alleges Yantis’s actions constitute unfair competition. AEFA has not presented any evidence in support of its unfair competition claim. Therefore, the court finds AEFA has not demonstrated the likelihood of success on the merits of its unfair competition claim. B. Irreparable Harm The second Dataphase factor the court must consider is the degree of irreparable harm, if any, AEFA would suffer if the court does not grant the preliminary injunction. See Dataphase, 640 F.2d at 114 (setting out the second factor a court is to consider, i.e., the threat of irreparable harm to the plaintiff if the court does not enjoin the defendant). The party moving for a preliminary injunction may show irreparable harm by showing that the movant has no adequate remedy at law. Baker Elec. Co-op., 28 F.3d at 1473; Frank B. Hall & Co. v. Alexander & Alexander, Inc., 974 F.2d 1020, 1025 (8th Cir.1992). Proof that an adequate legal remedy exists supports an inference that no irreparable harm will occur. Moore Bus. Forms, Inc. v. Wilson, 953 F.Supp. 1056," }, { "docid": "3268206", "title": "", "text": "U.S.P.Q. 479, 481 (E.D. Mich.1974); see also, Church of Scientology Int’l v. Elmira Mission of Church of Scientology, 794 F.2d 38, 230 U.S.P.Q. 325, 327 (2d Cir.1986). Aveda has established a likelihood of confusion. Aveda also advances the argument that confusion could be particularly harmful in this case because Avita products are not subject to the same safeguards used by Aveda to insure that the customer is matched with the correct product. Aveda therefore foresees consumers buying an Avita product, but believing that they are using Aveda, and suffering unpleasant results because the product is wrong for them. Defendants claim that there is no irreparable harm because there is no evidence of confusion. However, Aveda has established a likelihood of confusion and therefore shown the existence of irreparable harm. III. Balance of Hardships The third element which must be established by a party moving for a preliminary injunction is that the harm to the moving party outweighs the financial loss and damage to the reputation of the non-moving party. National Board of YMCA v. Flint YMCA, 764 F.2d 199, 226 U.S.P.Q. 324, 325 (6th Cir.1985). Where the moving party has made a substantial investment developing its trademark relative to the nonmoving party’s investment in the allegedly infringing mark, the courts generally find that the moving party’s hardship outweighs that of the nonmoving party. See, e.g., McNeil Laboratories, Inc. v. American Home Products Corp., 416 F.Supp. 804, 193 U.S.P.Q. 486, 491 (D.N.J.1976); Humble Oil & Refining Co. v. Humble Leasing Co., 146 U.S.P.Q. 717, 721 (E.D.Pa. 1965). Avita is a new product, marketed primarily in salons owned by Cassidy in Minnesota and Iowa and in salons owned by others in the Salt Lake City, Utah area. It does not appear that defendants have expended substantial sums in the production or marketing of their product. Defendants argue conversely that a preliminary injunction would “completely disrupt” their business, leaving them without a mark and without a product on the market. This, defendants assert, would damage their relationship with customers and cause substantial replacement costs. Aveda counters that it has expended huge sums advertising" }, { "docid": "22049531", "title": "", "text": "absorption and water output issue; this study should help resolve whether Mead’s claims are false or misleading. See Sandoz Pharmaceuticals, 902 F.2d at 227-28. Also, we expect that the parties will present evidence of consumer and physician reaction to the lower osmolality claim, for only if the claim, which is literally true, actually misleads does it violate the Lanham Act. In sum, we agree with the district court’s determination that Abbott has established a likelihood of succeeding on the merits of its § 48(a)(2) cause of action. B. The second preliminary injunction threshold requires Abbott to establish that it will be irreparably harmed if it does not receive preliminary relief, and that money damages and/or an injunction ordered at final judgment would not rectify that harm. The district court determined that Abbott did not clear this threshold. In so holding, the court acknowledged the well-established presumption that injuries arising from Lanham Act violations are irreparable, even absent a showing of business loss. See, e.g., International Kennel Club Inc. v. Mighty Star, Inc., 846 F.2d 1079, 1091 (7th Cir.1988) (trademark infringement); Processed Plastic Co. v. Warner Communications, Inc., 675 F.2d 852, 858 (7th Cir.1982) (same); James Burrough Ltd. v. Sign of the Beefeater, Inc., 540 F.2d 266, 276 (7th Cir.1976) (same); McNeilab, Inc. v. American Home Prods. Corp., 848 F.2d 34, 38 (2d Cir.1988) (false advertising); cf. Milton Handler, Unfair Competition, 21 Iowa L.Rev. 175, 193 (1936) (“The competition of a liar is always dangerous even though the exact injury may not be susceptible of precise proof.”). This presumption, it appears, is based upon the judgment that it is virtually impossible to ascertain the precise economic consequences of intangible harms, such as damage to reputation and loss of goodwill, caused by such violations. See Roland Mach., 749 F.2d at 386. There can be no doubt that Mead’s Rice-lyte campaign, which attempts to convince consumers that Pedialyte is an inferior OES product, has dented Abbott’s reputation. See McNeilab, 848 F.2d at 38 (comparative advertising “necessarily diminishes [the competing product’s] value in the minds of the consumer”). The district court nonetheless found the" }, { "docid": "12739885", "title": "", "text": "Corp., 559 F.3d 110, 118 (2d Cir.2009) (quoting Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir.1999)). “To satisfy the irreparable harm requirement, plaintiff[ ] must demonstrate that absent a preliminary injunction [it] will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve the harm.” Id. (alterations and internal quotation marks omitted). Furthermore, a plaintiff must show “that there is a continuing harm which cannot be adequately redressed by final relief on the merits and for which money damages cannot provide adequate compensation.” Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir.2002) (internal quotation marks omitted). “Irreparable harm exists in a trademark case when the party seeking the injunction shows that it will lose control over the reputation of its trademark ... because loss of control over one’s reputation is neither ‘calculable nor precisely compensable.’ ” U.S. Polo Ass’n, Inc. v. PRL USA Holdings Inc., 800 F.Supp.2d 515, 540 (S.D.N.Y.2011); NYC Triathlon, 704 F.Supp.2d at 343 (“Prospective loss of ... goodwill alone is sufficient to support a finding of irreparable harm.”) (citing Tom Doherty Associates v. Saban Entm’t, Inc., 60 F.3d 27, 37-38 (2d Cir.1995)). Plaintiff has invested substantial effort and resources in developing the goodwill associated with the Juicy Marks. Defendants’ infringement in the United States puts that goodwill at risk by limiting Plaintiffs ability to control its brand. See Stern’s Miracle-Gro Prods., Inc. v. Shark Prods., Inc., 823 F.Supp. 1077, 1094 (S.D.N.Y. 1993) (plaintiffs expenditure of $100 million establishing its brand contributed to potential hardship if defendant was not enjoined from further use of the “Miracle Gro” mark); Bulman, 882 F.Supp.2d at 564 (likelihood of “future confusion” and “prospective loss of goodwill” despite no claim of “lost business, sales or revenues” sufficient to establish irreparable harm). Furthermore, although irreparable harm may not be presumed upon a showing of likelihood of success on the merits, see eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 393, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006), a party’s demonstration of a likelihood" }, { "docid": "11530875", "title": "", "text": "matter, and why the non-compete clause is valid and enforceable under Iowa law. Suffice it to say that the court has already previously disposed of the defendants’ arguments that Montana law should apply to the 1996 Agreement, and that the non-compete clause contained in the 1996 Agreement is an unreasonable restraint on trade in violation of Montana law. The court here adopts its previous determinations that Iowa law would apply to this matter, and that the covenant not to compete is enforceable and valid under Iowa law, as supporting the court’s finding here that a likelihood of success on the merits has been established. 2., Irreparable harm The second Dataphase factor is “irreparable harm.” See, e.g., Dataphase, 640 F.2d at 114. As this court has also explained, “ ‘The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies.’ ” Bandag, Inc., 190 F.3d at 926 (quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959)). “Thus, to warrant a preliminary injunction, the moving party must demonstrate a sufficient threat of irreparable harm.” Id.; Adam-Mellang v. Apartment Search, Inc., 96 F.3d 297, 299 (8th Cir.1996) (“ ‘[T]he failure to show irreparable harm is, by itself, a sufficient ground upon which to deny a preliminary injunction.’ ”) (quoting Gelco Corp. v. Conisten Partners, 811 F.2d 414, 418 (8th Cir.1987)). Various considerations may be relevant to a determination of “irreparable harm.” For example, a movant’s delay in seeking relief or objecting to the actions the movant seeks to enjoin “belies any claim of irreparable injury pending trial.” Hubbard Feeds v. Animal Feed Supplement, 182 F.3d 598, 603 (8th Cir.1999). Moreover, an adequate showing of “irreparable harm” cannot be something that has never been the focus of the underlying lawsuit. See United States v. Green Acres Enters., Inc., 86 F.3d 130, 133 (8th Cir.1996). A sufficient showing on this factor can be made, for example, by showing that the movant has no adequate remedy at law. Baker Elec. Co-op., 28 F.3d at 1473. Conversely, where the movant has" }, { "docid": "20065183", "title": "", "text": "follow the approach taken in Dominion Video Satellite, Inc. v. EchoStar Satellite Corp. Because this portion of the TRO is neither mandatory nor disruptive of the status quo, the Court will evaluate it under the normal standard of review, and Guidance will be able to rely on the modified-likelihood-of-suceess-on-the-merits standard for the request related to the Obturator Order. II. GUIDANCE HAS DEMONSTRATED THAT IT FACES IRREPARABLE HARM IF THE COURT DOES NOTACT. The first element of the test for injunctive relief is whether Guidance is in danger of irreparable harm if the Court does not grant a TRO or preliminary injunction. See Oklahoma, ex rel., Okla. Tax Comm’n v. International Registration Plan, Inc., 455 F.3d at 1113. Economic damage to a business can be a basis for preliminary relief. The evidence reveals that Guidance is in a precarious financial situation and that it is unlikely to obtain needed supply from any source other than the Defendants. This evidence sufficiently demonstrates that Guidance is threatened with irreparable injury. Guidance paints a dire picture about its situation and raises a number of reasons why it will suffer irreparable harm absent injunctive relief: (i) loss of goodwill; (ii) loss of unique economic opportunities; (iii) loss of customers; (iv) loss of future profits; (v) diminishment of competitive advantage in the marketplace; and (vi) impending bankruptcy. Guidance contends that the Defendants are the only reasonable source of supply and that, unless Guidance receives more product soon, it will begin to suffer the six consequences laid out. The evidence strongly favors Guidance’s position. The Tenth Circuit and many other federal courts of appeals recognize that loss of customer goodwill is a factor that supports an irreparable harm determination. See, e.g., Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d at 1261; Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d at 19 n. 7; MultiChannel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d at 552. Guidance has offered evidence that, without product from the Defendants, Guidance will not be able to meet the needs of its customers, which will severely damage Guidance’s" }, { "docid": "6751008", "title": "", "text": "the intention of creating confusion. On the other hand, when Guaranty came into this market it was aware of Midwest Guaranty’s presence in the market, and Guaranty chose not to enter the market with a new name, thereby intentionally carrying its mark into the territory of Midwest Guaranty Bank. 8. Likelihood of Expansion of Product Lines Both parties acknowledge that this factor is not relevant in this case. 9. A Strong Likelihood of Success on the Merits Has Been Established When synthesizing the eight factors, it becomes clear that virtually all of the important factors favor Midwest Guaranty. Circumstantial evidence supports a finding that Midwest Guaranty’s mark is strong in the relevant geographic area. Moreover, the parties services are related and their marks are confusingly similar. Finally, and most importantly, evidence of actual confusion strongly supports a conclusion that confusion is likely to occur. Based on the record currently before the Court, Midwest Guaranty has succeeded in establishing a strong likelihood of success. D. Irreparable Injury Midwest Guaranty claims that it will suffer irreparable injury if a preliminary injunction does not issue in this case. As noted by Midwest Guaranty, this inquiry is inextricably intertwined with the likelihood that Midwest Guaranty will succeed on the merits. The law of this Circuit holds that no particular finding of likelihood of entry or irreparable harm is necessary for in-junctive relief in trademark infringement or unfair competition cases. See Wynn Oil Co. v. American Way Serv. Corp., 943 F.2d 595, 608 (6th Cir.1991). The Wynn Court noted that irreparable injury “ordinarily follows when a likelihood of confusion or possible risk to reputation appears” from infringement or unfair competition. Id. (quoting Koppers Co. v. Krupp-Koppers GmbH, 517 F.Supp. 836, 849 (W.D.Pa.1981)). Thus, a court need only find that a defendant is hable for infringement or unfair competition for it to award injunctive relief. Circuit City Stores, Inc. v. CarMax, Inc., 165 F.3d 1047, 1056 (6th Cir.1999). “The irreparable injury flows ‘both from the potential difficulty of proof of plaintiffs damages, and also from the impairment of intangible values ... ’ ” such as Midwest" }, { "docid": "14886902", "title": "", "text": "courts have found irreparable harm in the loss of control of a business’ reputation, a loss of trade and loss of goodwill. Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 195 (3rd Cir.1990). Trademarks serve as the identity of their owners and in them resides the reputation and goodwill of their owners. Thus, if another person infringes the marks, that person borrows the owner’s reputation, whose quality no longer lies within the owner’s control. Id. A trademark owner’s loss of the ability to control its marks, thus, creates the potential for damage to its reputation. Id. at 196. “Potential damage to reputation constitutes irreparable injury for the purpose of granting a preliminary injunction in a trademark case.” Id.; See also Apple Computer, Inc. v. Formula Int’l Inc., 725 F.2d 521, 526 (9th Cir.1984) (finding irreparable injury where “district court could reasonably have concluded that continuing infringement would result in loss of control over Apple’s reputation and loss of good will”). Here, plaintiff submits evidence to establish a likelihood that if VPX continues to flood the marketplace with its MUSCLE POWER® products and advertising, it will cause CS irreparable harm because these activities prevent CS from controlling the reputation of its highly recognizable and valuable MUSCLE MILK® brand. Moreover, CS has established a strong likelihood that if VPX’s products are allowed to remain in the marketplace, it will be extremely difficult for CS to maintain and restore its goodwill among customers, some of whom are already being confused by defendant’s products. (White Deck, ¶ 44.) The court finds that CS has shown that VPX’s MUSCLE POWER® mark and trade dress so closely resemble the MUSCLE MILK® mark and trade dress, especially when viewed in the marketplace, that CS has likely lost some control over its reputation in the market. As a result, VPX’s ongoing use of its MUSCLE POWER® mark and trade dress is likely to confuse consumers, thereby causing CS substantial and irreparable harm. Accordingly, plaintiff has also established this required element for injunctive relief. III. Balance of Equities As set forth above, the damage CS" }, { "docid": "20359345", "title": "", "text": "Youngblade that would outweigh Curtis 1000’s substantial interest in enforcement of the covenant not to compete and its potential economic and other injuries if the covenant was not enforced. Hence, Curtis 1000 stood a strong likelihood of success on the merits of its claim to enforce the covenant. The other factor in the Dataphase analysis that the court regarded as particularly important here was the threat of irreparable harm. The court concluded that irreparable harm or the threat of it could be shown in the present case from the breach of the covenant not to compete, and from the loss of goodwill to Curtis 1000 as the result of Youngblade’s violations and potential violations of the covenant. Curtis also stood to suffer from the economic impact of loss of customers loyal to Youngblade who constituted a significant percentage of its business in the Minnesota division. This economic impact could be felt in lost jobs, and other aspects less tangible. The court concluded that, although some of Curtis 1000’s injuries were readily quantifiable, some other significant injuries were difficult to valúate and could not be recompensed merely by monetary damages. Thus, Curtis 1000 had made an adequate showing of the threat of irreparable harm. Applying the remaining factors in the Dataphase analysis, the court concluded that the balance of harms weighed in favor of issuing the preliminary injunction. There was significant potential economic injury to Curtis 1000 from denying the injunctive relief requested, and almost no evidence of any economic injury to Youngblade as the result of granting that relief. Furthermore, the court concluded that Curtis 1000’s rights under the covenants would be threatened or injured, while granting the injunction would only require Youngblade to live up to the obligations in the contract which had given him substantial rights. The court noted that Youngblade’s right to work and right to use the skills he had acquired would not be impinged by granting the injunction, because Youngblade is already employed with another company working and exercising those skills. Finally, the court found that federal courts of this circuit and Iowa state courts" } ]

[ { "docid": "9921200", "title": "", "text": "v. Raulie, 879 F.2d 1396, 1398 (6th Cir.1989) (per curiam) (citing Houston v. Lack, Warden, 487 U.S. 266, 108 S.Ct. 2379, 2384-85, 101 L.Ed.2d 245 (1988)) (in civil case notice of appeal is “filed” upon receipt). Having determined that we have jurisdiction to hear this appeal, we proceed to the merits of defendant’s arguments. C. We first consider whether the district court erred by refusing to reduce defendant’s sentence for acceptance of responsibility. The Guidelines allow a two-level reduction in total offense level “[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” Guidelines § 3El.l(a). A guilty plea does not entitle a defendant to a sentence reduction as a matter of right. Guidelines § 3El.l(c); United States v. Wilson, 878 F.2d 921, 923 (6th Cir.1989). Without any authority for the proposition that a sentencing court is under a duty to inquire of a defendant concerning his or her remorse, the defendant criticizes the district court for its failure to question him at his invitation. The express language of the Guidelines convinces us that the burden is upon the defendant to “demonstrate” acceptance of responsibility — not on the sentencing court to lead the defendant into acceptance of responsibility. Guidelines § 3E 1.1(a). Both defendant and his counsel were given ample opportunity before the district court to demonstrate his acceptance of responsibility. In the sentencing judge’s estimation, the defendant failed. We have stated: Whether or not a defendant has accepted responsibility for his crime is a factual question [subject to the clearly erroneous standard of review]_ Because the trial court’s assessment of a defendant’s contrition will depend heavily on credibility assessments, the “clearly erroneous” standard will nearly always sustain the judgment of the district court in this area. Wilson, 878 F.2d at 923 (quoting United States v. Thomas, 870 F.2d 174, 176 (5th Cir.1989)). A sentencing judge’s determination will “not be disturbed unless it is without foundation.” Id. The sentencing judge refused to award a sentence reduction because he failed to find the degree of “admission and contriteness” necessary to indicate an acceptance" } ]

[ { "docid": "14352405", "title": "", "text": "level by three. We must also affirm the district court’s three-level increase pursuant to § 3Bl.l(b) because the criminal activity was extensive. Section 3Bl.l(b) applies if the criminal activity involved five or more participants or “was otherwise extensive.” The district court found that the criminal activity was extensive, and McGuire does not challenge this finding. This is an independent basis for the § 3Bl.l(b) three-level increase. See United States v. Reid, 911 F.2d 1456, 1465-66 (10th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 990, 112 L.Ed.2d 1074 (1991). B. Acceptance of Responsibility Section 3El.l(a) of the Sentencing Guidelines provides for a two-level reduction in offense level “[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” “The question of whether a defendant has accepted responsibility for his crimes is a factual one, depending largely on credibility assessments of the sentencing judge.” United States v. McKenzie, 922 F.2d 1323, 1329 (7th Cir.), cert. denied, — U.S.-, 112 S.Ct. 163, 116 L.Ed.2d 127 (1991). Thus, the district court’s decision on this point is entitled to great deference and will not be disturbed unless it is without foundation. Id.; U.S.S.G. § 3E1.1, Application Note 5. Although McGuire did cooperate with the Illinois State Police to some extent, the district court refused to reduce McGuire’s offense level for acceptance of responsibility because the defendant “waffled” in his dealings with the police. The district court found that McGuire would cooperate and then dissemble; he made statements about his drug activities and then he recanted those statements. Thus, the district court concluded that McGuire did not “clearly demonstrate[ ] a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” We cannot say that the district court’s decision was clearly erroneous. V. Conclusion For the foregoing reasons, McGuire’s conviction and sentence are Affirmed. . On one occasion, Ty Welsch was purchasing four ounces of cocaine from McGuire on behalf of his friend, \"Mike.” McGuire told Welsch that he had gotten a \"really good price” on a large quantity of cocaine because he had driven to Chicago himself. McGuire" }, { "docid": "21608936", "title": "", "text": "Guideline range at 21 to 27 months’ imprisonment and a fine range of $5,000 to $50,000. The district court sentenced Fleener to 21 months’ imprisonment and a $5,000 fine as well as a $250 special penalty assessment, and a three year term of supervised release. II. The United States argues on appeal that the district court’s application of the Guidelines is incorrect. Appellate review of sentences under the Guidelines is governed by 18 U.S.C. § 3742, which provides in relevant part: The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous.... 18 U.S.C. § 3742(e) (Supp.1989). Section 3E1.1 of the Guidelines permits a two-level reduction in the sentence of a defendant who “clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” Application Note 5 to section 3E1.1 sets forth the standard of review for reductions made under this provision: “The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation.” See United States v. Luster, 889 F.2d 1523 (6th Cir.1989). Finally, this circuit has recently held that a district court’s acceptance of responsibility determination will be reviewed under a “clearly erroneous” standard of review. United States v. Wilson, 878 F.2d 921 (6th Cir.1989) (quoting United States v. Thomas, 870 F.2d 174, 176 (5th Cir.1989) (“[bjecause the trial court’s assessment of a defendant’s contrition will depend heavily on credibility assessments, the ‘clearly erroneous’ standard will nearly always sustain the judgment of the district court in this area”). See also Luster, 889 F.2d at 1525. The thrust of the government’s argument on appeal is that the entrapment defense raised by Fleener at trial as to three of the five charges is inconsistent with the notion of acceptance of responsibility. At trial, Fleener took the stand to claim that he" }, { "docid": "19266898", "title": "", "text": "of guilt;” and (3) “voluntary surrender to authorities promptly after commission of the offense.” U.S.S.G. § 3E1.1, cmt. (n. 1). A district court’s determination that a defendant has accepted responsibility is a factual question which is to be affirmed by reviewing courts unless clearly erroneous. United States v. Snyder, 913 F.2d 300, 305 (6th Cir.1990), cert. denied, 498 U.S. 1039, 111 S.Ct. 709, 112 L.Ed.2d 698 (1991); United States v. Luster, 889 F.2d 1523, 1525 (6th Cir.1989); United States v. Wilson, 878 F.2d 921, 923 (6th Cir.1989). The district court specifically found: It served (McElveen’s) interest just to lay low and hope the matter didn’t become unraveled. He didn’t step up to the plate and accept responsibility. He didn’t disclose the truth of the matter long after any supposed necessity had evaporated and the services had been rendered. He got all the services and left and never made anything in the way of a truthful disclosure. Recognizing McElveen’s actions, we can hardly deem the sentencing court’s acceptance of responsibility determination clearly erroneous. McElveen failed to voluntarily pay restitution to those who provided him medical care. McElveen failed to voluntarily surrender to authorities promptly after his receipt of medical care. Additionally, MeEl-veen failed to voluntarily terminate or withdraw from the criminal conduct and take steps that might disclose the illegal activities. Given the facts at hand the district court did not commit clear error by denying McEl-veen a reduction for acceptance of responsibility. III. For the foregoing reasons we AFFIRM the jury’s findings and the judgment of the Honorable Thomas A Higgins, United States District Judge for the Middle District of Tennessee. RYAN, Circuit Judge, concurring separately. I concur in all of my brother’s opinion except part II.D., as to which I concur only in the conclusion that the district court did not err in calculating restitution." }, { "docid": "21043945", "title": "", "text": "the conspiracy involved between 500 grams and 2 kilograms of cocaine was not clearly erroneous. See Fed.R.Civ.P. 52(a) (district court’s findings of fact should not be reversed unless clearly erroneous). Nelson’s first assignment of error is therefore without merit. B. The Guidelines allow a two-level reduction in total offense level “[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” U.S. S.G. § 3El.l(a). The Sixth Circuit previously announced the standard of review applicable to a district court’s “acceptance of responsibility” determination: Whether or not a defendant has accepted responsibility for his crime is a factual question. The district court’s determination of that question, like its findings with respect to manager status, and minimal participant status, enjoys the protection of the “clearly erroneous” standard. Because the trial court’s assessment of a defendant’s contrition will depend heavily on credibility assessments, the “clearly erroneous” standard will nearly always sustain the judgment of the district court in this area. Indeed, the guidelines specifically state that “[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation.” United States v. Wilson, 878 F.2d 921, 923 (6th Cir.1989) (quoting United States v. Thomas, 870 F.2d 174, 176 (5th Cir.1989) (citations omitted)). Nelson argues that the district court’s denial of an acceptance of responsibility reduction was without foundation. Specifically, Nelson argues that he is entitled to the acceptance of responsibility reduction because he admitted selling cocaine to the government informant. The district court's refusal to allow the two-level reduction, however, was due to Nelson’s failure to accept responsibility for his role in the conspiracy: Nelson did not clearly demonstrate a recognition and affirmative acceptance of responsibility for his criminal conduct in organizing and leading the conspiracy for which he was found guilty; therefore, a two- (2-) level reduction in the Base Offense Level pursuant to U.S.S.G. § 3El.l(a) is not warranted. District Court’s February 27, 1990 Memorandum of Opinion" }, { "docid": "22995799", "title": "", "text": "refusing to reduce defendant’s offense level by two levels under U.S.S.G. § 3E1.1, which provides for a reduction where “the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct ... .” Our cases hold that “the defendant bears the burden of showing by a preponderance of the evidence that he or she has accepted responsibility for the crime committed.” United States v. Williams, 940 F.2d 176, 181 (6th Cir.1991). The district court denied defendant’s request for a two-level reduction under this section, finding that defendant had never made a voluntary and truthful admission of his involvement in the offenses charged. The presentence report discussed a written statement furnished by defendant to his probation officer in which (a) defendant tried to portray his contact with Freeman as a legitimate business relationship in which he was to be a lobbyist, (b) he denied offering Sheriff Thomas any of the money he received from Freeman, and (c) he stated that he had not brought up the subject of money, but that Freeman and Joe Shrum had done so. The determination of defendant’s acceptance of personal responsibility is a question of fact, and the district court’s findings are to be accepted by reviewing courts unless clearly erroneous. United States v. Snyder, 913 F.2d 300, 305 (6th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 709, 112 L.Ed.2d 698 (1991); United States v. Christoph, 904 F.2d 1036, 1041 (6th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 713, 112 L.Ed.2d 702 (1991); United States v. Luster, 889 F.2d 1523, 1525 (6th Cir.1989). Reviewing courts also bear in mind that, where credibility determinations must be made, the district court is always in the best position to draw the fine distinctions sometimes necessary to the resolution of such issues. Therefore, [bjecause the trial court’s assessment of a defendant’s contrition will depend heavily on credibility assessments, the “clearly erroneous” standard will nearly always sustain the judgment of the district court in this area. United States v. Thomas, 870 F.2d 174, 176 (5th Cir.1989). In this case, the district court rejected the defendant’s characterization" }, { "docid": "22995800", "title": "", "text": "and Joe Shrum had done so. The determination of defendant’s acceptance of personal responsibility is a question of fact, and the district court’s findings are to be accepted by reviewing courts unless clearly erroneous. United States v. Snyder, 913 F.2d 300, 305 (6th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 709, 112 L.Ed.2d 698 (1991); United States v. Christoph, 904 F.2d 1036, 1041 (6th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 713, 112 L.Ed.2d 702 (1991); United States v. Luster, 889 F.2d 1523, 1525 (6th Cir.1989). Reviewing courts also bear in mind that, where credibility determinations must be made, the district court is always in the best position to draw the fine distinctions sometimes necessary to the resolution of such issues. Therefore, [bjecause the trial court’s assessment of a defendant’s contrition will depend heavily on credibility assessments, the “clearly erroneous” standard will nearly always sustain the judgment of the district court in this area. United States v. Thomas, 870 F.2d 174, 176 (5th Cir.1989). In this case, the district court rejected the defendant’s characterization that this was a case of “one con man attempting to out con another con man,” and found that defendant had not accepted responsibility. Application Note 2 to section 3E1.1 provides: This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Defendant put the government to its burden of proof at trial and denied the essential facts of his guilt. The district court’s findings that defendant has not yet fully admitted guilt or expressed remorse are supported by the record in this case, and accordingly there is no error in the court’s refusal to award defendant a two-level reduction pursuant to section 3E1.1. E. Defendant argues that the district court erred when it admitted the seven items of evidence listed below: 1. Webb testified that Thomas told Freeman and him he was not opposed to zoning. 2. Shrum testified that Thomas had the power to stop" }, { "docid": "14118095", "title": "", "text": "violation of the bankruptcy process, and a two-level increase for more than minimal planning. The court denied Edgar’s request for a two-level reduction for acceptance of responsibility. With a criminal history category of I, this resulted in a sentencing range of twenty-four to thirty months. The court denied Edgar’s request for a downward departure from this range, and sentenced Edgar to twenty-four months incarceration, three years supervised release, and $25,000 restitution. Edgar now appeals his sentence. He claims that the district court erred in denying a two-level reduction for acceptance of responsibility, in denying a downward departure from the sentencing range, and in calculating the loss caused by his fraud. We discuss each of his claims in turn. II. A. Acceptance of Responsibility The Sentencing Guidelines provide that the court may reduce the defendant’s offense level by two “[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” U.S.S.G. § 3El.l(a). We give great deference to the district court “when reviewing its evaluation of a defendant’s acceptance of responsibility, and will disturb the district court’s decision only if it is without foundation.” United States v. Russell, 913 F.2d 1288, 1295 (8th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1687, 114 L.Ed.2d 81 (1991). Prior to being found guilty by a jury, Edgar denied any intent to defraud the creditors. Only after the jury returned its verdict of guilty did Edgar voluntarily relinquish his license to. practice law and state that he accepted the jury’s verdict of guilty and thought that it was correct. The district court did not clearly err in denying the reduction based on Edgar’s refusal to admit an essential element of bankruptcy fraud before his conviction. U.S.S.G. § 3E1.1, comment, (n. 2); see also, e.g., United States v. Stuart, 923 F.2d 607, 613 (8th Cir.), cert. denied, — U.S.-, 111 S.Ct. 1599, 113 L.Ed.2d 662 (1991) (no acceptance of responsibility reduction when defendant put the government to its burden of proof at trial by denying any intent to distribute a controlled substance); United States v. Sloman, 909 F.2d 176," }, { "docid": "14125208", "title": "", "text": "testimony. We find that it was not clear error for the District Court to disregard the testimony of Gil in favor of the numerous other witnesses who testified that much larger amounts of cocaine were involved. B. Both Gil and Rodriguez argue that they should have received a two point offense level reduction for their clear recognition and affirmative acceptance of personal responsibility. U.S.S.G. § 3El.l(a). They base this conclusion on admissions of guilt made to the probation officer and to the District Court after their convictions. We have held in cases involving this oft-appealed issue that: “[w]hether or not a defendant has accepted responsibility for his crime is a factual question.... Because the trial court’s assessment of a defendant’s contrition will depend heavily on credibility assessments, the ‘clearly erroneous’ standard will nearly always sustain the judgment of the district court in this area.... For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation.” United States v. Wilson, 878 F.2d 921, 923 (6th Cir.1989) (quoting United States v. Thomas, 870 F.2d 174, 176 (5th Cir.1989) (citations omitted)). The burden is on the defendant to demonstrate acceptance of responsibility. United States v. Christoph, 904 F.2d 1036, 1040 (6th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 713, 112 L.Ed.2d 702 (1991). The District Court found that before, during, and after the trial, both Gil and Rodriguez attempted to minimize their roles in the drug conspiracy. Thus, the Court concluded that any reduction for acceptance of responsibility was not warranted. This conclusion was reached after the Court heard all the testimony at trial, the findings of the probation office, and the statements of the defendants themselves. We find that the record supports the Court’s denial of the reduction and such denial was not clear error. C. The base offense level of Rodriguez was enhanced by two levels pursuant to a finding by the District Court that a firearm was connected with her offenses. U.S.S.G. § 2Dl.l(b)(l). Rodriguez claims this finding was clearly erroneous because it was" }, { "docid": "22851297", "title": "", "text": "of the sentencing guidelines; (3) is outside the applicable guideline range, and is unreasonable ... The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court’s application of the guidelines to the facts. B. The “Solely for Sporting Purposes” Issue Determination of whether the .357 Magnum in this case was used solely for sporting purposes is a question of fact and as such is to be reviewed under the clearly erroneous standard. See United States v. Lorenzo, 951 F.2d 350 (6th Cir.1991). C. The Acceptance of Responsibility Issue Regarding acceptance of responsibility, the standard of review is discussed in Application Note Five to Guidelines § 3El.l(a): The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review. See United States v. Wilson, 878 F.2d 921, 923 (6th Cir.1989) (accepting and applying this standard). Generally a question of fact, the trial court’s determination of whether a defendant has accepted responsibility normally enjoys the protection of the clearly erroneous standard, and will not be overturned unless it is without foundation. See id. (citing and accepting relevant portion of United States v. Thomas, 870 F.2d 174, 176 (5th Cir.1989)); United States v. Lassiter, 929 F.2d 267, 270 (6th Cir.1991); United States v. Christoph, 904 F.2d 1036, 1041 (6th Cir.1990), cert. denied, 498 U.S. 1041, 111 S.Ct. 713, 112 L.Ed.2d 702 (1991). Questions of law, however, such as the appropriate application of this guideline to a particular set of facts, are subject to de novo review. See United States v. Wilson, 920 F.2d 1290, 1294 (6th Cir.1990); United States v. Brewer, 899 F.2d 503, 506 (6th Cir.1990). III. The “Solely for Sporting Purposes\" Reduction In support of his claim that the firearm was used solely for sporting purposes, Defendant presents the following facts. First, before purchasing the handgun," }, { "docid": "22424384", "title": "", "text": "II. Guideline § 3El.l(a) provides that a sentencing court may reduce the offense level by two levels “[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct....” In determining whether a defendant qualifies for a two-step offense level reduction, the Commentary to Guideline § 3E1.1 sets forth a nonexclusive list of factors a sentencing court may consider. Among the considerations are: (a) voluntary termination or withdrawal from criminal conduct or associations; (b) voluntary payment of restitution pri- or to adjudication of guilt; (c) voluntary and truthful admission to authorities of involvement in the offense and related conduct; (d) voluntary surrender to authorities promptly after commission of the offense; (e) voluntary assistance to authorities in the recovery of the fruits and instrumen-talities of the offense; (f) voluntary resignation from the office or position held during the commission of the offense; and (g) the timeliness of the defendant’s conduct in manifesting the acceptance of responsibility. Harris contends that the district court erred when it denied a two-level downward adjustment. He argues that the trial judge mistakenly relied more heavily on subjective factors, such as his demeanor and ostensible lack of contrition. He claims the court ignored the objective evidence of contrition, such as his guilty plea, his cooperation with investigative agents in explaining the scheme and the role he played in it, and his acknowledgment that he did wrong. The determination whether a defendant “clearly demonstrates a recognition and affirmative acceptance of personal responsibility” is a factual issue, and the district court’s decision not to reduce the offense level will not be disturbed unless clearly erroneous. United States v. White, 875 F.2d 427, 431 (4th Cir.1989). The primary policy underlying this deferential standard of review is self-evident. A defendant’s credibility and demeanor play a crucial role in evaluating whether he is genuinely contrite and has accepted responsibility and the sentencing judge is in a unique position to evaluate these factors. Id. at 430-31. See 18 U.S.C. § 3742(e) (1985 & Supp. 1989); Guideline § 3E1.1, Application Note 5. Harris concedes that a guilty plea does" }, { "docid": "14371675", "title": "", "text": "offense for which there is no applicable sentencing guideline and is plainly unreasonable.” 18 U.S.C. § 3742(e) (1988). We give “due deference to the district court’s application of the guidelines to the facts,” id., while reviewing the application fully for errors of law. United States v. Havens, 910 F.2d 703, 704 (10th Cir.1990). We review the district court’s factual findings under the clearly erroneous standard. Id. The issue of acceptance of responsibility for purposes of downgrading the sentence under the Guidelines is a question of fact subject to the clearly erroneous standard. United States v. Spedalieri, 910 F.2d 707, 712 (10th Cir.1990), cert. denied, 498 U.S. 1030, 111 S.Ct. 687, 112 L.Ed.2d 678 (1991). We will not disturb the trial court’s determination on this issue unless it is without foundation. Id. After reviewing' the record in this ease, we find Defendant’s position unpersuasive. A defendant is entitled to a reduction in offense level only “[i]f the defendant dearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct_” U.S.S.G. § 3El.l(a) (emphasis added). Moreover, a defendant bears the burden of proof on this issue. United States v. Ruth, 946 F.2d 110, 113 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1189, 117 L.Ed.2d 431 (1992). Defendant pleaded guilty to only three counts of a multi-count indictment. As we have previously noted, “a guilty plea to [only part] of a multi-count indictment does not necessarily entitle a defendant to a reduced offense level based on acceptance of responsibility.” Id. The guidelines similarly note that “[a] defendant who enters a guilty plea is not entitled to a sentencing reduction ... as a matter of right,” U.S.S.G. § 3El.l(c), and only “[i]n rare situations [may] a defendant clearly demonstrate an acceptance of responsibility ... even though he exercises his constitutional right to a trial” and puts the government to its burden of proof. U.S.S.G. § 3E1.1, comment, (n. 2). We find none of the four factors listed in section 3742(e) applicable to this case. Nor do we find the district court’s factual findings to be clearly erroneous. Accordingly, under" }, { "docid": "2085178", "title": "", "text": "to raise his offense level by two points. Under the guidelines, a defendant with Lucas’ minimal criminal history and an of fense level of 26 would receive a sentence of between 63 and 78 months, while a defendant with an offense level of 28 would receive a sentence of 78 to 97 months. After overruling Lucas’ objections to the Probation Office’s report and increasing his offense level score to 28, the district court sentenced him to the maximum of 97 months in prison. In addition, Lucas was ordered to make restitution to all of the banks he pleaded guilty to robbing. The principal issue upon appeal is whether the district court erred in failing to reduce Lucas’ offense level score by two points and, instead, departing from the guidelines and increasing his score by two points. II. In reviewing a defendant’s appeal of an application of the guidelines, pursuant to 18 U.S.C. § 3742(a), [t]he court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court’s application of the guidelines to the facts. 18 U.S.C. § 3742(e) (Supp.1989). Lucas first argues that the district court improperly applied the guidelines because it incorrectly found that he had failed to accept responsibility for his crimes. “Whether or not a defendant has accepted responsibility is a factual question, depending largely upon credibility assessments. With respect to such assessments, we defer to the conclusion of the sentencing judge ... [and] affirm the sentencing judge’s findings unless they are ‘without foundation.’ ” United States v. Franco-Torres, 869 F.2d 797, 799 (5th Cir.1989) (quoting United States v. Thomas, 870 F.2d 174, 177 (5th Cir.1989)). Lucas also challenges the district court’s departure from the guidelines. As this court noted recently in United States v. Rodriguez, 882 F.2d 1059 (6th Cir.1989), review of such a departure follows a three-step process: 1) A plenary review of whether the circumstances of the case justify departure;" }, { "docid": "2181444", "title": "", "text": "was sentenced to thirty months imprisonment. Defendant timely appeals. II. In the present case, defendant argues that the district court incorrectly applied the guidelines. Appellate review of sentences under the guidelines is set forth in 18 U.S.C. § 3742, which provides in relevant part: The court of appeals shall give, due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous. Section 3E1.1 of the guidelines allows for a two-level reduction “if the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” Application Note Five to this guideline sets forth the standard of review for decisions made concerning this section: “The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation.” This court has recently adopted the “clearly erroneous” standard of review for a district court’s acceptance of responsibility determination. Whether or not a defendant has accepted responsibility for his crime is a factual question. The district court’s determination of that question, like its findings with respect to manager status, and minimal participant status, enjoys the protection of the ‘clearly erroneous’ standard. Because the trial court’s assessment of a defendant’s contrition will depend heavily on credibility assesements, the ‘clearly erroneous’ standard will nearly always sustain the judgment of the district court in this area. United States v. Wilson, 878 F.2d 921 (6th Cir.1989) (quoting United States v. Thomas, 870 F.2d 174, 176 (5th Cir.1989)). Defendant argues that the sentencing court misapplied the guidelines by failing to give him a two-level reduction for his acceptance of responsibility, which was apparent from his guilty plea without extensive motion practice, affirmative statements of his guilt at the time of his bond hearing, and cooperation in the preparation of his Presentence Report. The government argues that defendant does not deserve the reduction because throughout the summer of" }, { "docid": "23084165", "title": "", "text": "basis for a finding that Anderson obstructed justice and we affirm that determination. B. United States’ Cross-Appeal On cross-appeal, the United States assigns error to the district court’s grant of a two-level reduction for acceptance of responsibility. The district court granted Anderson the reduction based upon a letter Anderson sent to the court after conviction but before sentencing. The relevant portions of the letter provided: Sir, little did I know that when I was brought to Ohio that misery and tragedy would also follow. I am not an advocate of crime or drugs and do not use drugs or sell drugs. Yet according to circumstances I have become a victim. Sentencing Guidelines § 3E1.1 provides for a two-level reduction for a defendant who clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his or her criminal conduct. To qualify for this reduction, the defendant bears the burden of showing by a preponderance of the evidence that he or she has accepted responsibility for the crime committed. United States v. Christoph, 904 F.2d 1036, 1040 (6th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 713, 112 L.Ed.2d 702 (1991); United States v. Rodriguez, 896 F.2d 1031, 1032 (6th Cir.1990). Whether a defendant has accepted responsibility for the criminal conduct is a question of fact, and the district court’s assessment of this is accorded great deference and is not to be disturbed unless clearly erroneous. 18 U.S.C. § 3742(e); United States v. Lassiter, 929 F.2d 267, 270 (6th Cir.1991); United States v. Barrett, 890 F.2d 855, 869 (6th Cir.1989); United States v. Wilson, 878 F.2d 921, 923 (6th Cir.1989). We find that Anderson failed to satisfy her burden that she accepted responsibility for her criminal conduct, and that the district court was clearly erroneous in holding otherwise. Based upon the reasons that follow, we hold that Anderson should not receive a two-level reduction for acceptance of responsibility under § 3E1.1. Application Note 1, § 3E1.1 provides a nonexclusive list of seven factors a court may consider in making a determination of whether a defendant has accepted responsibility for criminal conduct." }, { "docid": "14821811", "title": "", "text": "BREYER, Chief Judge. The district court accepted Shaun K. O’Neil’s plea of guilty to charges of breaking into a post office and stealing mail, 18 U.S.C. §§ 1708 & 2115, and it sentenced him to serve 21 months in prison. In calculating his sentence, the court refused to award him the two-level Sentencing Guidelines credit for “acceptance of responsibility,” see United States Sentencing Commission, Guidelines Manual, § 3El.l(a), a credit that here would likely have reduced O’Neil’s prison term to 16 months. O’Neil appeals his sentence, see 18 U.S.C. § 3742(a)(2), claiming that the law required the court to give him the two-level credit. We disagree. The Guidelines make the credit in question available to a “defendant” who “clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct_” U.S.S.G. § 3El.l(a). O’Neil concedes that the Guidelines explicitly state that a “defendant who enters a guilty plea is not entitled” to the credit “as a matter of right.” Id. § 3El.l(c) (emphasis added). But, he notes that this circuit has held that a sentencing court, when considering the credit, must focus on a defendant’s “acceptance of responsibility” for the “criminal conduct” that is charged; the court cannot require the defendant to accept responsibility for some other, uncharged conduct. See United States v. Perez-Franco, 873 F.2d 455, 459 (1st Cir.1989); accord United States v. Piper, 918 F.2d 839, 841 (9th Cir.1990); United States v. Oliveras, 905 F.2d 623, 629 (2d Cir.1990); United States v. Rogers, 921 F.2d 975, 982 (10th Cir.) (dictum), cert. denied, — U.S. —, 111 S.Ct. 113, 112 L.Ed.2d 83 (1990). But see United States v. Mourning, 914 F.2d 699, 705-06 (5th Cir.1990); United States v. Ignancio Munio, 909 F.2d 436, 439 n. 4 (11th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 1393, 113 L.Ed.2d 449 (1991); United States v. Gordon, 895 F.2d 932, 936-37 (4th Cir.), cert. denied, — U.S.—, 111 S.Ct. 131, 112 L.Ed.2d 98 (1990). And, he says that the district court violated this principle here. In particular, O’Neil claims that the district court refused him the credit because he did" }, { "docid": "22122823", "title": "", "text": "that this, coupled with acceptance of responsibility, entitled him to a sentencing range of 27-33 months, based on a total offense level of 18. The district court rejected his arguments and sentenced him to 44 months. III. Guideline § 3El.l(a) provides for a 2-lev-el reduction of the offense level for acceptance of responsibility “[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” Appellate review of a district court’s determination of whether to reduce a defendant’s offense level for acceptance of responsibility is governed by 18 U.S.C.A. § 3742(e), which provides: (e) Consideration. — Upon review of the record, the court of appeals shall determine whether the sentence— (1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; (3) is outside the applicable guideline range, and is unreasonable, having regard for— (A) the factors to be considered in imposing a sentence, as set forth in chapter 227 of this title; and (B) the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or (4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable. The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court’s application of the guidelines to the facts. Application Note 5 of the Commentary to Guideline § 3E1.1 explains that “[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility,” and that his determination “is entitled to great deference on review and should not be disturbed unless it is without foundation.” White contends that the “great deference” instruction conflicts with the “unreasonable” standard of section 3742(e)(3). This contention is without merit for subsection (e)(3) addresses the review of sentences imposed outside the appropriate guideline ranges and has no" }, { "docid": "14596907", "title": "", "text": "(Nov. 1991). That section provides that, where the defendant is guilty of a crime involving theft, “[i]f the offense involved more than minimal planning, increase by 2 levels.” Id. We review a district court’s factual determinations made for the purposes of sentencing under the clearly erroneous standard. United States v. Herrera, 928 F.2d 769, 773 (6th Cir.1991). We find the evidence presented in this case sufficient to support the enhancement. Clark repeatedly asked Rector to watch for a Blazer or Cadillac worth stealing. In addition, Clark’s method of stealing the FBI Cadillac clearly indicated prior planning. Accordingly, we affirm the court’s decision to increase Clark’s sentence pursuant to § 2B1.1(5) of the guidelines. V Clark next contends that the court erred in refusing to reduce his offense level by two levels for acceptance of responsibility under U.S.S.G. § 3E1.1. In United States v. Snyder, 913 F.2d 300, 305 (6th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 709, 112 L.Ed.2d 698 (1991), we held that an appellate court shall review a district court’s decision under section 3E1.1 for clear error. We further held that, [bjecause the trial court’s assessment of a defendant’s contrition will depend heavily on credibility assessments, the “clearly erroneous” standard will nearly always sustain the judgment of the district court in this area_ For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation. Id. (quoting United States v. Thomas, 870 F.2d 174, 176 (5th Cir.1989)). Clark contends that he freely admitted to having committed the offenses charged and was therefore entitled to the two-level reduction as a matter of law. However, at a pretrial hearing, Clark stated to the court: “Take me out. I don’t want to be in here and hear these damn lies. The FBI needs to be all hung.... Hope you all die and go to hell.” J.A. at 78. While Clark maintains that his outburst merely expressed his frustration at being denied bond prior to trial, we believe the district court was in a much better position to" }, { "docid": "18686496", "title": "", "text": "regard to the obstruction-of-justice enhancement. B. Acceptance of Responsibility Crousore also argues that it was a clear abuse of discretion for the district court to refuse to grant him the two-level reduction for acceptance of responsibility. He notes that upon his arrest he confessed to several criminal acts. At his detention hearing, he again made statements against his own penological interests and admitted several offenses. His contrition is further exhibited by his pleading guilty. The acceptance of responsibility for his actions was again apparent at the time of sentencing when he owned up to his criminal behavior. In short, Crousore was the perfect candidate for the acceptance-of-responsibility reduction — except for one thing. He arranged, from jail, the sale of two pounds of marijuana. Section 3E1.1 of the Guidelines reads, “If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.” In determining whether the defendant qualifies for the reduction, it is appropriate to consider “voluntary termination or withdrawal from criminal conduct or associations,” § 3E1.1 Commentary (n. 1(b)), and although truthfully admitting guilt is significant acceptance of responsibility, “this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility,” § 3E1.1 Commentary (n. 3). It was Crousore’s burden to show by a preponderance of the evidence that he had accepted responsibility for his actions. Such acceptance is a question of fact and the district court’s findings of fact on this matter are accorded considerable deference and are not to be disturbed unless clearly erroneous. United States v. Williams, 940 F.2d 176, 181 (6th Cir.), cert. denied, — U.S. -, 112 S.Ct. 666, 116 L.Ed.2d 757 (1991); United States v. Snyder, 913 F.2d 300, 305 (6th Cir.1990), cert. denied, 498 U.S. 1039, 111 S.Ct. 709, 112 L.Ed.2d 698 (1991). The district court’s finding is not clearly erroneous. While we commend Crousore for his admissions of guilt and his acceptance of responsibility for those things which he admitted doing, we think the district court was completely justified in taking the arrangement of a drug deal from the" }, { "docid": "14371674", "title": "", "text": "their presence by the barking guard dog. The daylight enabled the occupants of the cabin to see outside, while the police were unable to see into the cabin. After considering the particular facts of this case, we hold that the officers could reasonably have believed that exigent circumstances existed. Accordingly, we hold that the no-knock entry into Defendant’s cabin was justified and that Defendant’s contentions in this regard are without merit. III. Defendant also contends that the trial court erred in denying him a two point reduction in calculating his offense level pursuant to U.S.S.G. § 3E1.1. The thrust of his argument is that it was unfair for Defendant’s codefendant to receive a reduction when he was denied such a reduction, given their respective pleas. In reviewing sentences imposed under the Sentencing Guidelines, we are limited to determining whether the sentence “(1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; (3) is outside the applicable range ...; or (4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.” 18 U.S.C. § 3742(e) (1988). We give “due deference to the district court’s application of the guidelines to the facts,” id., while reviewing the application fully for errors of law. United States v. Havens, 910 F.2d 703, 704 (10th Cir.1990). We review the district court’s factual findings under the clearly erroneous standard. Id. The issue of acceptance of responsibility for purposes of downgrading the sentence under the Guidelines is a question of fact subject to the clearly erroneous standard. United States v. Spedalieri, 910 F.2d 707, 712 (10th Cir.1990), cert. denied, 498 U.S. 1030, 111 S.Ct. 687, 112 L.Ed.2d 678 (1991). We will not disturb the trial court’s determination on this issue unless it is without foundation. Id. After reviewing' the record in this ease, we find Defendant’s position unpersuasive. A defendant is entitled to a reduction in offense level only “[i]f the defendant dearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct_” U.S.S.G. § 3El.l(a) (emphasis" }, { "docid": "19266897", "title": "", "text": "(6th Cir.1993). We review such an enhancement for clear error. United States v. Muhammad, 948 F.2d 1449, 1455 (6th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1239, 117 L.Ed.2d 472 (1992). In the instant case, McElveen’s scheme involved more than minimal planning. McElveen took significant affirmative steps to conceal the conspiracy, such as responding to personnel and signing various forms as “Benny Milligan” at Lewis, Maury and Vanderbilt Hospitals. Second, the concealment of the conspiracy included repeated acts furthering the conspiracy. Consequently, we find the sentencing court’s two level enhancement for more than minimal planning was not clearly erroneous. G. Finally, Appellants argue the sentencing court erred by failing to reduce McElveen’s offense level for acceptance of responsibility. We disagree. A two-level reduction in offense level is allowed when a defendant clearly recognizes and affirmatively accepts personal responsibility for his criminal conduct. U.S.S.G. § 3El.l(a). Among the criterion for determining whether a defendant accepted responsibility are: (1) “voluntary termination or withdrawal from criminal conduct or associations;” (2) “voluntary payment of restitution prior to adjudication of guilt;” and (3) “voluntary surrender to authorities promptly after commission of the offense.” U.S.S.G. § 3E1.1, cmt. (n. 1). A district court’s determination that a defendant has accepted responsibility is a factual question which is to be affirmed by reviewing courts unless clearly erroneous. United States v. Snyder, 913 F.2d 300, 305 (6th Cir.1990), cert. denied, 498 U.S. 1039, 111 S.Ct. 709, 112 L.Ed.2d 698 (1991); United States v. Luster, 889 F.2d 1523, 1525 (6th Cir.1989); United States v. Wilson, 878 F.2d 921, 923 (6th Cir.1989). The district court specifically found: It served (McElveen’s) interest just to lay low and hope the matter didn’t become unraveled. He didn’t step up to the plate and accept responsibility. He didn’t disclose the truth of the matter long after any supposed necessity had evaporated and the services had been rendered. He got all the services and left and never made anything in the way of a truthful disclosure. Recognizing McElveen’s actions, we can hardly deem the sentencing court’s acceptance of responsibility determination clearly erroneous. McElveen failed to" } ]

[ { "docid": "1372448", "title": "", "text": "OPINION OF THE COURT PER CURIAM: The issue for resolution here is whether the district court erred in refusing to intervene in a pending state bar disciplinary proceeding. I. This appeal arises out of litigation in which Leroy Gipson, Jr., a member of the bar of the State of New Jersey who is under temporary suspension on account of alleged ethical violations, sought to have the district court lift his suspension and declare New Jersey’s system of attorney discipline unconstitutional. As a result of numerous complaints alleging that Mr. Gipson had failed to deal properly with and to account for client funds, the Union County Ethics Committee issued a complaint against him on December 4, 1974. Although state disciplinary rules provide that an answer must be filed within ten days, Mr. Gipson did not respond until February, 1975. His answer admitted some of the allegations but denied any deliberate wrongdoing. On June 4,1975, the Committee, pursuant to its investigatory powers, served a subpoena duces tecum on Mr. Gipson requiring his presence at a hearing on June 18, 1975, and ordering the production of financial documents for a period stretching from January, 1970 to June, 1975. The hearing was postponed until June 26,1975, at which time Mr. Gipson appeared without an attorney and without the requested documents. A further adjournment was granted in order to enable Mr. Gipson to retain counsel. When a lawyer was obtained, Mr. Gipson requested a change of venue, charging that previous disciplinary actions concerning him had biased the Union County Committee. This request was denied. Mr. Gipson then filed a similar request for a change of venue with the New Jersey Supreme Court. Chief Justice Hughes directed that a formal motion be made before the Union County Committee. This was done, and after several affidavits were filed on behalf of the Committee, the motion for a change of venue was denied on September 9, 1975. The Supreme Court then issued a rule to show cause on Mr. Gipson concerning compliance with the subpoena. Shortly thereafter, the composition of the Committee conducting the investigation was changed to" } ]

[ { "docid": "19384478", "title": "", "text": "Younger and Huffman are broad enough to apply to interference by a federal court with an ongoing civil enforcement action such as this, brought by the State in its sovereign capacity.” Id. at 444, 97 S.Ct. 1911. In Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979), the Supreme Court held that the federal courts should abstain from deciding whether provisions of the Texas Family Code were,, unconstitutional when there was a pending civil court proceeding brought by the State for temporary custody of allegedly abused children. The Court noted that the case: was like Huffman in that “the State here was a party to the state proceedings, and the temporary removal of a child,in a child-abuse context is, like the public nuisance statute involved in Huffman, ‘in aid of and closely related to criminal statutes.’ Moore, 442 U.S. at 423, 99 S.Ct. 2371 (quoting Huffman, 420 U.S. at 604, 95 S.Ct. 1200).” In two cases, the Supreme Court expanded the Younger doctrine to require federal courts to abstain in favor of certain types of state administrative proceedings. In Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), an attorney was charged with ethical violations and faced disciplinary proceedings before a local ethics committee. The attorney brought a federal action challenging the constitutionality of the- disciplinary rules. The Court established a three-part test to determine if Younger abstention was appropriate: first, is the state proceeding judicial in nature; second, do the state proceedings implicate important state interests; third, is there an adequate opportunity in the state proceedings to raise constitutional challenges. Id. at 432, 102 S.Ct. 2515. The Court answered all three questions in the affirmative and concluded that Younger abstention was required. The Court noted that “the State’s interest in the present litigation is demonstrated by the fact that the Middlesex County Ethics Committee, an agency of the Supreme Court of New Jersey, is the named defendant in the present suit and was the body-which initiated the state proceedings against respondent Hinds.” Id. at 434-35," }, { "docid": "21876450", "title": "", "text": "the press about the conduct of a state trial. An ethics complaint was lodged against him by a member of the state ethics board. Instead of responding to the charge, the lawyer and others filed suit in the federal district court. The lawsuit contended that the ethics charge was in violation of the lawyer’s first amendment rights. In addition, the complaint directly attacked the disciplinary rules pursuant to which he had been charged as unconstitutionally vague and overbroad. The district court invoked its Younger abstention power and dismissed the action. A divided panel of the United States Court of Appeals for the Third Circuit reversed concluding that the disciplinary procedures failed to provide a meaningful opportunity to adjudicate constitutional defenses to ethics allegations. The court of appeals also characterized the disciplinary proceedings as administrative and nonadjudicative and unlike the state criminal or quasi-criminal proceedings to which Younger abstention had historically been applied. Certiorari was granted and while the review was pending in the United States Supreme Court, the New Jersey Supreme Court entertained oral arguments by the Middlesex respondent on the precise constitutional claims asserted by the lawyer; in addition, the New Jersey Supreme Court amended its procedural rules to permit interlocutory review of a constitutional challenge to disciplinary proceedings. The Chief Justice, delivering the opinion for a unanimous United States Supreme Court, determined that the disciplinary proceeding was judicial and not administrative in nature. The ethics procedures, the Court ruled, implicated especially important state interests relating to control over the professional conduct of its attorneys. The Court further held that in view of the state court’s actions subsequent to the intermediate appellate decision, it was evident that a constitutional defense could be enunciated in a meaningful manner by ethics charge respondents. The Third Circuit was therefore reversed. As relevant to this case, the Chief Justice addressed the above legal authorities with a rather pithy and comprehensive statement of the legal issues and standards implicated in a potential Younger abstention case. The Court’s opinion stated: The policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests" }, { "docid": "22613750", "title": "", "text": "1978). As recognized in Juidice v. Vail, 430 U. S. 327 (1977), however, whether the proceeding “is labeled civil, quasi-criminal, or criminal in nature,” the salient fact is whether federal-court interference would unduly interfere with the legitimate activities of the state. Id., at 335-336. The instant case arose before the 1978 rule change. In 1978 the New Jersey Supreme Court established a Disciplinary Review Board charged with review of findings of District Ethics Committees. Nothing in this rule change, however, altered the nature of such proceedings. The responsibility under Art. 6, § 2, ¶ 3, remains with the New Jersey Supreme Court. The role of local ethics or bar association committees may be analogized to the function of a special master. Anonymous v. Association of Bar of City of New York, 515 F. 2d 427 (CA2), cert. denied, 423 U. S. 863 (1975). The essentially judicial nature of disciplinary actions in New Jersey has been recognized previously by the federal courts. In Gipson v. New Jersey Supreme Court, 558 F. 2d 701 (1977), the United States Court of Appeals for the Third Circuit agreed that “incursions by federal courts into ongoing [New Jersey] disciplinary proceedings would be peculiarly disruptive of notions of comity.” Id., at 704. This case is distinguishable from Steffel v. Thompson, 415 U. S. 452, 462 (1974), in which there was no ongoing state proceeding to serve as a vehicle for vindicating the constitutional rights of the federal plaintiff. This case is also distinguishable from Gerstein v. Pugh, 420 U. S. 103, 108, n. 9 (1975), in which the issue of the legality of a pretrial detention could not be raised in defense of a criminal prosecution. See also Juidice v. Vail, 430 U. S., at 337. In addition, after the filing of the writ of certiorari the New Jersey Supreme Court amended the state bar disciplinary rules to expressly permit a motion directly to the New Jersey Supreme Court for interlocutory adjudication of constitutional issues. Rule 1:20 — 4(d)(i). See n. 9, supra. Even if interlocutory review is not granted, constitutional issues are preserved for consideration" }, { "docid": "17837751", "title": "", "text": "Judge struck as premature the part of the motion that sought to dismiss the Complaint, and the NJTHA filed an appeal of that order, which we dismissed for lack of jurisdiction. The District Court subsequently denied the motion to intervene on February 27, 2013, finding that the proposed intervenors failed to demonstrate that their interests were not adequately represented by Zanzuceki. The NJTHA filed a Notice of Appeal on March 5, 2013, which was docketed as No. 13-1634 (the “Intervention Appeal”) and consolidated with this appeal for purposes of disposition only. We resolve the Intervention Appeal in a separate opinion issued concurrently with this decision. . Three justices dissented, arguing that, because civil proceedings can be initiated simply by filing a complaint, it is too easy for the state to “strip [someone] of a forum and a remedy that federal statutes were enacted to assure.” Huffman v. Pursue, Ltd., 420 U.S. 592, 615, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (Brennan, J., dissenting). Although recognizing that Huffman was limited to quasi-criminal proceedings, Justice Brennan expressed his concern that the majority's decision was \"obviously only the first step” toward applying Younger abstention to all civil cases in state court. Id. at 613, 95 S.Ct. 1200. . As to the third prong, the Court acknowledged that the state ethics committee had concluded its evaluation without considering the plaintiffs constitutional arguments. Nonetheless, the Court found that the plaintiff had an adequate opportunity to present those challenges to the New Jersey Supreme Court, which had appellate jurisdiction over the ethics committee’s decision. Middlesex, 457 U.S. at 435-36, 102 S.Ct. 2515. . Justice Brennan concurred in the decision and noted that despite his general view that Younger is inapplicable to civil proceedings, he was inclined to join the judgment of the majority in light of the \"quasi-criminal nature of bar disciplinary proceedings,” Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 438, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (Brennan, J., concurring). . A review of Third Circuit precedent reveals that our Court was not excepted from the pitfall of mechanically applying" }, { "docid": "10621808", "title": "", "text": "respond at a critical predeprivation stage of the disciplinary process. Coughlan, on the other hand, testified that the names of all potential witnesses were provided to Judge Squire. He conceded, however, that she was not provided with the names of every single person contacted in connection with his investigation of her alleged misconduct. Addressing this allegation, Coughlan testified that Judge Squire did not in fact ask for the names of all persons contacted, but asked only for the names of the persons who filed the grievances. Judge Squire’s argument is unpersuasive because it conflicts with the Supreme Court’s holding in Middlesex. In Middle-sex, the Middlesex County Ethics Committee served a formal statement of charges on the plaintiff, a New Jersey attorney, arising out of an investigation into improper comments by the plaintiff in connection with a criminal trial. 457 U.S. at 428, 102 S.Ct. 2515. Rather than file an answer to the charges as required by New Jersey state disciplinary procedures, the attorney filed suit in federal district court, arguing that the disciplinary rules violated his First Amendment rights. Id at 429, 102 S.Ct. 2515. He claimed that there was no opportunity in the state disciplinary proceedings to raise his constitutional claim. Id. at 435, 102 S.Ct. 2515. The Supreme Court rejected this argument, noting that the attorney had “failed to respond to the complaint filed by the local Ethics Committee and failed even to attempt to raise any federal constitutional challenge in the state proceedings.” Id. Judge Squire argues that Coughlan’s alleged refusal to provide the identities of all complainants and witnesses was a denial of due process. Whether or not there was a denial of due process, the record makes clear that Judge Squire, like the attorney in Middlesex, failed to raise this constitutional claim in the state disciplinary proceedings. Instead, Judge Squire took her claim directly to federal district court before the draft complaint was even filed with the Board. She states no facts in support of her assertion that there was not an adequate opportunity to raise this due process challenge at the precomplaint stage of" }, { "docid": "9762244", "title": "", "text": "course of a criminal trial. See id. at 427-28, 102 S.Ct. 2515. Instead of answering the charges, Hinds filed suit in federal court along with other plaintiff legal organizations, claiming that the New Jersey disciplinary rules violated the First Amendment and were facially overbroad and vague. See id. at 429, 102 S.Ct. 2515. The district court dismissed the suit under Younger, but a divided panel of the Third Circuit reversed, concluding that abstention was improper because the state disciplinary proceedings did not provide plaintiffs with a meaningful opportunity to adjudicate their constitutional claims. See Garden State Bar Ass’n, 643 F.2d at 121. In rejecting the application of Younger, the Third Circuit focused on the fact that the state disciplinary proceedings were nonadjudicative in nature, and primarily “designed to elicit facts, not legal arguments,” id. at 126, and concluded that even if Hinds could raise a constitutional challenge during his pending disciplinary proceedings, New Jersey: rules [made] no provision for the filing of an opinion by the District Ethics Committee or the Disciplinary Review Board [and hence] ... [t]he very privacy of the proceeding militate[d] against a meaningful constitutional adjudication, since the determination [would] not provide any remedy against the chill which the rules and the filing of charges allegedly created in the minds of other members of the New Jersey bar. Id. “On petition for rehearing petitioner attached an affidavit from the Clerk of the New Jersey Supreme Court which stated that the New Jersey Supreme Court would directly consider Hinds’ constitutional challenges and that the court would [also] consider whether such a procedure should be made explicit in the Supreme Court rules.” Middlesex County Ethics Comm., 457 U.S. at 430, 102 S.Ct. 2515. However, the Third Circuit panel declined to alter its original decision, reasoning that it was not established that Hinds could have obtained such judicial review when the federal complaint was filed, and that, in any event, such discretionary action by the New Jersey Supreme Court was not sufficient to trigger mandatory abstention. See Garden State Bar Ass’n v. Middlesex County Ethics Comm., 651 F.2d 154, 156-57" }, { "docid": "9762255", "title": "", "text": "arguments, we begin by noting that the record gives us no reason to question the ability of either the Commission or the Court of Appeals to fully and fairly address Spargo’s constitutional claims despite plaintiffs’ intimations to the contrary. In addition, while plaintiffs point to procedural differences between the state administrative process and federal litigation, Younger implicitly recognizes that states may adopt a variety of different procedures to resolve legal disputes, yet it directs federal courts to defer to state procedures, leaving state institutions “free to perform their separate functions in their separate ways.” Younger, 401 U.S. at 44, 91 S.Ct. 746. Moreover, similar arguments about the adequacy of state proceedings were rejected by the Supreme Court in Middlesex, a case which also involved a disciplinary hearing before a state ethics committee whose primary mission was fact-finding. See Middlesex County Ethics Comm., 457 U.S. at 429, 102 S.Ct. 2515. The Supreme Court determined that the availability of further judicial review before the state’s highest court triggered mandatory abstention under Younger although the ethics committee was not required to issue a formal written opinion of its disciplinary decision and proceedings before the committee were confidential. See id. at 436-37, 102 S.Ct. 2515. We emphasize that Younger merely “presupposes that the plaintiff be able to interpose his federal defense ... in the state court; it does not [additionally] require all procedures for the interposition of the federal defense to be as advantageous in the state court as in the federal action.” Kirschner, 225 F.3d at 235; see also Brooks v. New Hampshire Supreme Court, 80 F.3d 633, 639 (1st Cir.1996) (rejecting plaintiffs argument that a state attorney discipline proceeding “is less than adequate because of its confidential character,” and noting that “the Supreme Court has never suggested that having an adequate opportunity to present a federal claim requires [that] the parallel state proceeding be open to the public.”). In sum, while Spargo may prefer a federal forum, he may pursue his constitutional claims in state proceedings, and therefore, the District Court should have abstained. See 31 Foster Children v. Bush, 329 F.3d" }, { "docid": "22613747", "title": "", "text": "New Jersey proceedings to raise constitutional issues, concluding that the disciplinary proceedings are not a series of separate segments before independent bodies but are part of a whole. Judge Weis also concluded that there was nothing to prevent the Ethics Committee from considering constitutional claims. The panel majority noted that no rule existed at the time of the District Court’s decision to assure the Court of Appeals that the New Jersey Supreme Court would consider the constitutional claims. The court also concluded that the possibility of a formal procedure of the New Jersey court for consideration of constitutional claims does not moot this case because the underlying dispute as to the validity of the rules still remains. Judge Weis, again dissenting, concluded that no justiciable controversy remained as to the issue in the Court of Appeals and recommended that the case be remanded and dismissed as moot. Rule l:20-4(d) states: “(i) Interlocutory Review. An aggrieved party may file a motion for leave to appeal with the Supreme Court to seek interlocutory review of a constitutional challenge to proceedings pending before the District Ethics Committee or the Disciplinary Review Board. The motion papers shall conform to R. 2:8-1. Leave to appeal may be granted only when necessary to prevent irreparable injury. If leave to appeal is granted, the record below may, in the discretion of the Court, be supplemented by the filing of briefs and oral argument. “(ii) Final Review. In any case in which a constitutional challenge to the proceedings has been properly raised below and preserved pending review of the merits of the disciplinary matter by the Supreme Court, the aggrieved party may, within 10 days of the filing of the report and recommendation of the Disciplinary Review Board, seek the review of the Court by proceeding in accordance with the applicable provisions of R. 1:19-8.” Samuels v. Mackell, 401 U. S. 66 (1971), concluded that the same comity and federalism principles govern the issuance of federal-court declaratory judgments concerning the state statute that is the subject of the ongoing state criminal proceeding. See M. Shoaf, State Disciplinary Enforcement" }, { "docid": "21876449", "title": "", "text": "a federal court with an ongoing civil enforcement action such as this, brought by the State in its sovereign capacity. 431 U.S. at 444, 97 S.Ct. at 1918 (footnote omitted). In Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979), the Court, once again through Justice Rehnquist, directed application of abstention to a civil proceed ing. The salient facticities identified by the Supreme Court which counseled in favor of abstention in Moore v. Sims were the state’s participation as a party to the underlying civil proceeding, the vital state interests which the state advanced by its participation (Moore v. Sims involved the state’s attempt to protect children by removing them from neglectful or abusive parents), and the federal plaintiff’s ability to raise constitutional issues in the state court as a defense to the state’s actions. In Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), a lawyer not directly involved in a pending criminal case made critical comments to members of the press about the conduct of a state trial. An ethics complaint was lodged against him by a member of the state ethics board. Instead of responding to the charge, the lawyer and others filed suit in the federal district court. The lawsuit contended that the ethics charge was in violation of the lawyer’s first amendment rights. In addition, the complaint directly attacked the disciplinary rules pursuant to which he had been charged as unconstitutionally vague and overbroad. The district court invoked its Younger abstention power and dismissed the action. A divided panel of the United States Court of Appeals for the Third Circuit reversed concluding that the disciplinary procedures failed to provide a meaningful opportunity to adjudicate constitutional defenses to ethics allegations. The court of appeals also characterized the disciplinary proceedings as administrative and nonadjudicative and unlike the state criminal or quasi-criminal proceedings to which Younger abstention had historically been applied. Certiorari was granted and while the review was pending in the United States Supreme Court, the New Jersey Supreme Court entertained oral arguments" }, { "docid": "10621809", "title": "", "text": "his First Amendment rights. Id at 429, 102 S.Ct. 2515. He claimed that there was no opportunity in the state disciplinary proceedings to raise his constitutional claim. Id. at 435, 102 S.Ct. 2515. The Supreme Court rejected this argument, noting that the attorney had “failed to respond to the complaint filed by the local Ethics Committee and failed even to attempt to raise any federal constitutional challenge in the state proceedings.” Id. Judge Squire argues that Coughlan’s alleged refusal to provide the identities of all complainants and witnesses was a denial of due process. Whether or not there was a denial of due process, the record makes clear that Judge Squire, like the attorney in Middlesex, failed to raise this constitutional claim in the state disciplinary proceedings. Instead, Judge Squire took her claim directly to federal district court before the draft complaint was even filed with the Board. She states no facts in support of her assertion that there was not an adequate opportunity to raise this due process challenge at the precomplaint stage of the proceeding. As the district court pointed out, Gov. Bar R. V “does not expressly permit or deny Plaintiff the ability to raise any constitutional objection.” At oral argument, counsel for Judge Squire emphasized that there were no explicit instructions in either the Bar Rules or the Judiciary Rules for raising constitutional claims at the precomplaint stage of the process. Because there were no explicit procedures in place, the reasoning goes, there was no adequate opportunity for Judge Squire to raise her claim. Judge Squire is correct in pointing out that there are no such procedures contained in the Rules. An absence of explicit procedures however, does not establish that Judge Squire had an inadequate opportunity to raise her claim. The disposi-tive fact in this case is that Judge Squire has not shown that Coughlan would have refused to consider her constitutional challenge. See Fieger, 74 F.3d at 747 (“Similar to the Plaintiff in Middlesex, Fieger has failed to demonstrate that members of the hearing panel and the Board, the majority of whom are lawyers," }, { "docid": "22613746", "title": "", "text": "he expects to be disseminated by means of public communication and that relates to the trial, parties, or issues in the trial or other matters that are reasonably likely to interfere with a fair trial. . . .” The majority concluded that the hearings are designed to elicit facts, not legal arguments, as indicated by the presence of nonlawyers. The court also found that the ability to raise constitutional claims before the Ethics Committee does not constitute a meaningful opportunity to have constitutional questions adjudicated. No formal opinion is filed by the District Ethics Committee. The Third Circuit distinguished Gipson v. New Jersey Supreme Court, 558 F. 2d 701 (CA3 1977), on the ground that in Gipson the attorney being disciplined was already subject to the state-court action at the time the federal proceeding had been initiated. Judge Adams, concurring, emphasized that state courts have the primary responsibility to discipline their bar and, in general, the federal judiciary is to exercise no supervisory powers. Judge Weis, dissenting, argued that respondents have full opportunity in the New Jersey proceedings to raise constitutional issues, concluding that the disciplinary proceedings are not a series of separate segments before independent bodies but are part of a whole. Judge Weis also concluded that there was nothing to prevent the Ethics Committee from considering constitutional claims. The panel majority noted that no rule existed at the time of the District Court’s decision to assure the Court of Appeals that the New Jersey Supreme Court would consider the constitutional claims. The court also concluded that the possibility of a formal procedure of the New Jersey court for consideration of constitutional claims does not moot this case because the underlying dispute as to the validity of the rules still remains. Judge Weis, again dissenting, concluded that no justiciable controversy remained as to the issue in the Court of Appeals and recommended that the case be remanded and dismissed as moot. Rule l:20-4(d) states: “(i) Interlocutory Review. An aggrieved party may file a motion for leave to appeal with the Supreme Court to seek interlocutory review of a constitutional" }, { "docid": "8075824", "title": "", "text": "separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. Id. at 44, 91 S.Ct. at 750. Since Younger, the Supreme Court has applied abstention to state civil proceedings which involve important state interests and to a variety of state administrative proceedings. In 1982, in Middlesex County Ethics Committee v. Garden State Bar Ass’n, the Supreme Court set out a three part test for determining when the abstention doctrine should be applied. 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). Middlesex is a disciplinary case, similar to the one at hand, in which a New Jersey lawyer filed suit in federal court to try to enjoin state disciplinary proceedings on the ground that the disciplinary rules violated his First Amendment rights and that the rules were facially vague and overbroad. The New Jersey Ethics Committee took issue with the lawyer’s comments, made at the beginning of a criminal trial, that characterized the proceedings as “a travesty,” a “legalized lynching,” and “a kangaroo court.” Id. at 428, 102 S.Ct. at 2519. The district court abstained on the basis of Younger. The Third Circuit, however, reversed on the ground that the state bar disciplinary proceedings did not provide a meaningful opportunity to adjudicate constitutional claims. The Appellate Court viewed the proceedings as “administrative,” not “judicial.” Thus, the Supreme Court had before it virtually all the questions that we now face — a constitutional attack on the state disciplinary rules as well as its procedures. The Supreme Court reversed, enumerating the three-part test which forms the basis of our analysis today: 1) Do state bar disciplinary hearings within the constitutionally prescribed jurisdiction of the State Supreme Court constitute an ongoing state judicial proceeding; 2) do the proceedings implicate important state interests; and 3) is there an adequate opportunity in the state proceedings to raise constitutional challenges? Id, at 432, 102 S.Ct. at 2521. 1. The First Requirement: Ongoing State Judicial Proceedings The first requirement of abstention under" }, { "docid": "22613740", "title": "", "text": "of respondents can be determined in the state proceedings and so long as there is no showing of bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate, the federal courts should abstain. D Respondent Hinds contends that there was no opportunity in the state disciplinary proceedings to raise his federal constitutional challenge to the disciplinary rules. Yet Hinds failed to respond to the complaint filed by the local Ethics Committee and failed even to attempt to raise any federal constitutional challenge in the state proceedings. Under New Jersey’s procedure, its Ethics Committees constantly are called upon to interpret the state disciplinary rules. Respondent Hinds points to nothing existing at the time the complaint was brought by the local Committee to indicate that the members of the Ethics Committee, the majority of whom are lawyers, would have refused to consider a claim that the rules which they were enforcing violated federal constitutional guarantees. Abstention is based upon the theory that “ ‘[t]he accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection.’” Younger v. Harris, 401 U. S., at 45, quoting Fenner v. Boykin, 271 U. S. 240, 244 (1926). In light of the unique relationship between the New Jersey Supreme Court and the local Ethics Committee, and in view of the nature of the proceedings, it is difficult to conclude that there was no “adequate opportunity” for respondent Hinds to raise his constitutional claims. Moore, 442 U. S., at 430. Whatever doubt, if any, that may have existed about respondent Hinds’ ability to have constitutional challenges heard in the bar disciplinary hearings was laid to rest by the subsequent actions of the New Jersey Supreme Court. Prior to the filing of the petition for certiorari in this Court the New Jersey Supreme Court sua sponte entertained the constitutional issues raised by respondent Hinds. Respondent Hinds therefore has had abundant opportunity to present his constitutional challenges in the state" }, { "docid": "22613744", "title": "", "text": "“The Supreme Court shall make rules governing the administration of all courts in the State and, subject to the law, the practice and procedure in all such courts. The Supreme Court shall have jurisdiction over the admission to the practice of law and the discipline of persons admitted.” For a more detailed explanation of the disciplinary procedure of the District Ethics Committees, see Rule 1:20-2. As noted below, the procedure, as amended in 1981, now provides that a charged attorney may raise constitutional questions in the District Committees. Any constitutional challenges are to be set forth in the answer to the complaint. Rule 1:20 — 2(j) now provides: “All constitutional questions shall be withheld for consideration by the Supreme Court as part of its review of the final decision of the Disciplinary Review Board. Interlocutory relief may be sought only in accordance with R. 1:20 — 4(d)(i).” Each District Ethics Committee appoints one member of the bar to serve as Secretary. The Secretary maintains records of the proceedings. The Secretary also transmits copies of all documents filed to the Division of Ethics and Professional Services. Rule l:20-2(c). Subsequent to the initiation of the disciplinary hearing involved in this case, Rule l:20-3(e) was amended to provide: “Constitutional challenges to the proceedings not raised before the District Committee shall be preserved, without Board action, for Supreme Court consideration as part of its review of the matter on the merits.. Interlocutory relief may be sought only in accordance with Rule l:20-4(d)(i).” The Disciplinary Rules of the Code of Professional Responsibility and Code of Judicial Conduct of the American Bar Association, with amendment and supplementation, have been adopted by the New Jersey Supreme Court as the applicable standard of conduct for members of the bar and the judges of New Jersey. New Jersey Court Rule 1:14. DR 7-107 deals with “Trial Publicity” and states: “(D) During the selection of a jury or the trial of a criminal matter, a lawyer or law firm associated with the prosecution or defense of a criminal matter shall not make or participate in making an extra-judicial statement that" }, { "docid": "22613745", "title": "", "text": "documents filed to the Division of Ethics and Professional Services. Rule l:20-2(c). Subsequent to the initiation of the disciplinary hearing involved in this case, Rule l:20-3(e) was amended to provide: “Constitutional challenges to the proceedings not raised before the District Committee shall be preserved, without Board action, for Supreme Court consideration as part of its review of the matter on the merits.. Interlocutory relief may be sought only in accordance with Rule l:20-4(d)(i).” The Disciplinary Rules of the Code of Professional Responsibility and Code of Judicial Conduct of the American Bar Association, with amendment and supplementation, have been adopted by the New Jersey Supreme Court as the applicable standard of conduct for members of the bar and the judges of New Jersey. New Jersey Court Rule 1:14. DR 7-107 deals with “Trial Publicity” and states: “(D) During the selection of a jury or the trial of a criminal matter, a lawyer or law firm associated with the prosecution or defense of a criminal matter shall not make or participate in making an extra-judicial statement that he expects to be disseminated by means of public communication and that relates to the trial, parties, or issues in the trial or other matters that are reasonably likely to interfere with a fair trial. . . .” The majority concluded that the hearings are designed to elicit facts, not legal arguments, as indicated by the presence of nonlawyers. The court also found that the ability to raise constitutional claims before the Ethics Committee does not constitute a meaningful opportunity to have constitutional questions adjudicated. No formal opinion is filed by the District Ethics Committee. The Third Circuit distinguished Gipson v. New Jersey Supreme Court, 558 F. 2d 701 (CA3 1977), on the ground that in Gipson the attorney being disciplined was already subject to the state-court action at the time the federal proceeding had been initiated. Judge Adams, concurring, emphasized that state courts have the primary responsibility to discipline their bar and, in general, the federal judiciary is to exercise no supervisory powers. Judge Weis, dissenting, argued that respondents have full opportunity in the" }, { "docid": "9762242", "title": "", "text": "disciplinary proceeding against Spargo, a proceeding that undeniably implicates a vital state interest. Indeed, few interests can be considered more central than a state’s interest in regulating its own judicial system. See Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 848, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978) (Stewart, J., concurring in the judgment) (emphasizing that “[t]here could hardly be a higher governmental interest than a State’s interest in the quality of its judiciary”); cf. Pincham v. Ill. Judicial Inquiry Bd., 872 F.2d 1341, 1347 (7th Cir.) (recognizing that the state has a vital interest in “preserving a fair and impartial judiciary”), cert. denied, 493 U.S. 975, 110 S.Ct. 497, 107 L.Ed.2d 501 (1989); Anonymous v. Ass’n of the Bar of the City of New York, 515 F.2d 427, 430 (2d Cir.) (noting that “[i]t would appear axiomatic that the effective functioning of any court depends upon its ability to command respect not only from those licensed to practice before it but also from the public at large”), cert. denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975). Plaintiffs primarily argue that abstention is inappropriate, because there is no opportunity for Spargo to meaningfully pursue his constitutional claims in the pending disciplinary proceeding, and because McNally and Kermani are not party to any pending Commission proceeding or other state action. In analyzing plaintiffs’ arguments against abstention, we note that the underlying facts and claims in this case are strikingly similar to the facts and issues raised in Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), the seminal Supreme Court case that first clearly extended Younger to state administrative proceedings. In Middlesex, plaintiffs brought a federal action, alleging that several attorney disciplinary rules promulgated by the New Jersey Supreme Court violated the First Amendment. Prior to the initiation of the federal action, one of the plaintiffs, Lennox Hinds (“Hinds”), a practicing New Jersey attorney, was formally charged with violating the disciplinary rules by a county ethics committee after he allegedly made statements disparaging the judicial system during the" }, { "docid": "9762243", "title": "", "text": "122, 46 L.Ed.2d 92 (1975). Plaintiffs primarily argue that abstention is inappropriate, because there is no opportunity for Spargo to meaningfully pursue his constitutional claims in the pending disciplinary proceeding, and because McNally and Kermani are not party to any pending Commission proceeding or other state action. In analyzing plaintiffs’ arguments against abstention, we note that the underlying facts and claims in this case are strikingly similar to the facts and issues raised in Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), the seminal Supreme Court case that first clearly extended Younger to state administrative proceedings. In Middlesex, plaintiffs brought a federal action, alleging that several attorney disciplinary rules promulgated by the New Jersey Supreme Court violated the First Amendment. Prior to the initiation of the federal action, one of the plaintiffs, Lennox Hinds (“Hinds”), a practicing New Jersey attorney, was formally charged with violating the disciplinary rules by a county ethics committee after he allegedly made statements disparaging the judicial system during the course of a criminal trial. See id. at 427-28, 102 S.Ct. 2515. Instead of answering the charges, Hinds filed suit in federal court along with other plaintiff legal organizations, claiming that the New Jersey disciplinary rules violated the First Amendment and were facially overbroad and vague. See id. at 429, 102 S.Ct. 2515. The district court dismissed the suit under Younger, but a divided panel of the Third Circuit reversed, concluding that abstention was improper because the state disciplinary proceedings did not provide plaintiffs with a meaningful opportunity to adjudicate their constitutional claims. See Garden State Bar Ass’n, 643 F.2d at 121. In rejecting the application of Younger, the Third Circuit focused on the fact that the state disciplinary proceedings were nonadjudicative in nature, and primarily “designed to elicit facts, not legal arguments,” id. at 126, and concluded that even if Hinds could raise a constitutional challenge during his pending disciplinary proceedings, New Jersey: rules [made] no provision for the filing of an opinion by the District Ethics Committee or the Disciplinary Review Board [and" }, { "docid": "22613753", "title": "", "text": "particular restraint before intruding into an ongoing disciplinary proceeding by a state court against a member of the State’s bar, where there is an adequate opportunity to raise federal issues in that proceeding. The traditional and primary responsibility of state courts for establishing and enforcing standards for members of their bars and the quasi-criminal nature of bar disciplinary proceedings, In re Ruffalo, 390 U. S. 544, 551 (1968), call for exceptional deference by the federal courts. See Gipson v. New Jersey Supreme Court, 558 F. 2d 701, 703-704 (CA3 1977); Erdmann v. Stevens, 458 F. 2d 1205, 1209-1210 (CA2 1972). I continue to adhere to my view, however, that Younger v. Harris, 401 U. S. 37 (1971), is in general inapplicable to civil proceedings. See Huffman v. Pursue, Ltd., 420 U. S. 592, 613 (1975) (Brennan, J., dissenting). Justice Marshall, with whom Justice Brennan, Justice Blackmun, and Justice Stevens join, concurring in the judgment. I agree with much of the general language in the Court’s opinion discussing the importance of the State’s interest in regulating the professional conduct of its attorneys. However, I believe that the question whether Younger abstention would have been appropriate at the time that the District Court or the Court of Appeals considered this issue is not as simple as the Court’s opinion might be read to imply. As the Court acknowledges, absent an ongoing judicial proceeding in which there is an adequate opportunity for a party to raise federal constitutional challenges, Younger is inapplicable. Ante, at 432. See also Gibson v. Berryhill, 411 U. S. 564,577 (1973). Here, it is unclear whether, at the time the lower courts addressed this issue, there was an adequate opportunity in the state disciplinary proceedings to raise a constitu tional challenge to the disciplinary rules. Furthermore, it is unclear whether proceedings before the Ethics Committee are more accurately viewed as prosecutorial rather than judicial in nature. I agree with the Court that we may consider events subsequent to the decisions of the courts below because the federal litigation has addressed only the question whether abstention is appropriate. Thus far," }, { "docid": "22613739", "title": "", "text": "of a re-occurrence.” In re Baron, 25 N. J. 445, 449, 136 A. 2d 873, 875 (1957). The judiciary as well as the public is dependent upon professionally ethical conduct of attorneys and thus has a significant interest in assuring and maintaining high standards of conduct of attorneys engaged in practice. See In re Stein, 1 N. J. 228, 237, 62 A. 2d 801, 805 (1949), quoting In re Cahill, 66 N. J. L. 527, 50 A. 119 (1901). The State’s interest in the professional conduct of attorneys involved in the administration of criminal justice is of special importance. Finally, the State’s interest in the present litigation is demonstrated by the fact that the Mid-dlesex County Ethics Committee, an agency of the Supreme Court of New Jersey, is the named defendant in the present suit and was the body which initiated the state proceedings against respondent Hinds. The importance of the state interest in the pending state judicial proceedings and in the federal case calls Younger abstention into play. So long as the constitutional claims of respondents can be determined in the state proceedings and so long as there is no showing of bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate, the federal courts should abstain. D Respondent Hinds contends that there was no opportunity in the state disciplinary proceedings to raise his federal constitutional challenge to the disciplinary rules. Yet Hinds failed to respond to the complaint filed by the local Ethics Committee and failed even to attempt to raise any federal constitutional challenge in the state proceedings. Under New Jersey’s procedure, its Ethics Committees constantly are called upon to interpret the state disciplinary rules. Respondent Hinds points to nothing existing at the time the complaint was brought by the local Committee to indicate that the members of the Ethics Committee, the majority of whom are lawyers, would have refused to consider a claim that the rules which they were enforcing violated federal constitutional guarantees. Abstention is based upon the theory that “ ‘[t]he accused should first set up and rely upon his defense" }, { "docid": "20070952", "title": "", "text": "a formal complaint against Cogswell. Defendants have filed a motion asking this Court to abstain from hearing the plaintiffs action and to dismiss the plaintiffs complaint because of the ongoing state disciplinary proceedings. The parties have briefed the issues and oral argument would not assist in resolving them. In support of their motion, the defendants rely on Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). There the Court held that a federal court should abstain from interfering with ongoing disciplinary proceedings within the jurisdiction of a state supreme court. In Middlesex, disciplinary proceedings had been commenced against a New Jersey attorney. Instead of filing an answer to the charges, the attorney filed suit in federal district court contending that the state’s disciplinary rules violated his constitutional rights. The district court dismissed the complaint on the basis of the abstention principles of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The Third Circuit reversed on the ground that the state disciplinary proceedings did not provide a meaningful opportunity to adjudicate constitutional claims. The Supreme Court reversed, holding that:' (1) the policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved; (2) where such state interests are involved, a federal court should abstain unless the law clearly bars interposition of the constitutional claims; and (3) a state has an extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses. Plaintiff contends that his situation is distinguishable from Middlesex because “there was no ‘pending’ disciplinary proceeding against him at the time he filed his federal complaint.” Plaintiff’s memorandum, at 2-3. I disagree. At the time the plaintiff filed this action, disciplinary proceedings had already commenced. Specifically, the inquiry panel had already acted pursuant to Colo.R.Civ.P. 241.11 by admonishing Cogswell, and he had requested that a formal complaint be issued. Thus, in every practical sense the state proceeding was pending when the plaintiff filed this action. It follows that abstention is the proper course under Middlesex. It" } ]

[ { "docid": "22145166", "title": "", "text": "Fabrics Corp. v. Stafford Knitting Mills, Inc., 490 F.2d 1092 (2d Cir.1974); Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir.1960) (L. Hand, J.). To prove infringement, a plaintiff with a valid copyright must demonstrate that: (1) the defendant has actually copied the plaintiffs work; and (2) the copying is illegal because a substantial similarity exists between the defendant’s work and the protectible elements of plaintiffs. Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 122-23 (2d Cir.1994); and see Laureyssens v. Idea Group, Inc., 964 F.2d 131, 140 (2d Cir.1992); Folio Impressions, 937 F.2d at 765. Lollytogs does not dispute the validity of Knitwaves’ copyrights or that it copied Knitwaves’ sweater designs; it contends, however, that it altered the designs enough so that its sweaters are not “substantially similar” to Knitwaves’. It notes that “[w]hile no plagiarist can excuse the wrong by showing how much of his work he did not pirate, a defendant may legitimately avoid infringement by intentionally making sufficient changes in a work which would otherwise be regarded as substantially similar to that of the plaintiffs.” Warner Bros, Inc. v. American Broadcasting Cos., 654 F.2d 204, 211 (2d Cir.1981) (citations and internal quotations omitted). We review the issue of “substantial similarity” de novo. Fisher-Price, 25 F.3d at 123. In most cases, the test for “substantial similarity” is the so-called “ordinary observer test” which the district court applied: whether “an average lay observer would [ ] recognize the alleged copy as having been appropriated from the copyrighted work.” Folio Impressions, 937 F.2d at 766 (quoting Novelty Textile Mills v. Joan Fabrics Corp., 558 F.2d 1090, 1093 (2d Cir.1977)); see also Malden Mills, 626 F.2d at 1113; Laureyssens, 964 F.2d at 141 (test is “whether ‘the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same’ ”) (quoting Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960) (L. Hand, /.)). However, as Lollytogs notes, where we compare products that contain both protectible and unproteetible" } ]

[ { "docid": "5035761", "title": "", "text": "with the last remaining Predator to fend off the Aliens. Muller brought suit alleging that he had sent his script for TLC to various persons or entities associated with defendants, that TLC was copyrighted, and that there was substantial similarity between TLC and AVP. He therefore claimed that defendants had (1) infringed his copyright and (2) breached an implied contract by appropriating his ideas without remuneration. Defendants subsequently moved for summary judgment. In his opposition, Muller moved for additional discovery. Ultimately, the District Court granted summary judgment to defendants on both the copyright infringement claim and the breach of implied contract claim, and denied plaintiffs request for further discovery. Muller v. Twentieth Century Fox Film Corp., 794 F.Supp.2d 429, 449 (S.D.N.Y.2011). On appeal, Muller argues that the District Court (1) erred as a matter of fact and law in granting summary judgment on his copyright infringement claim; (2) erred as a matter of fact and law in granting summary judgment on his breach of implied contract claim; and (3) abused its discretion in denying his motion for additional discovery. DISCUSSION A. Copyright Infringement Where, as here, the parties do not dispute that the plaintiff has a valid copyright, the plaintiff must prove two elements to prevail: (1) actual copying and (2) improper appropriation. Laureyssens v. Idea Group, Inc., 964 F.2d 131, 139-40 (2d Cir.1992). A plaintiff may establish actual copying circumstantially by demonstrating (a) that the defendant had access to the copyrighted material and (b) that the two works exhibit similarities “probative of copying.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003) (quotation marks omitted). Alternatively, a plaintiff may prove actual copying if the “works are so strikingly similar as to preclude the possibility of independent creation.” Repp v. Webber, 132 F.3d 882, 889 (2d Cir.1997) (quotation marks omitted). A plaintiff may demonstrate improper appropriation by showing substantial similarity between the two works. Laureyssens, 964 F.2d at 140. Hence, a court may grant summary judgment for the defendant where “no reasonable jury, properly instructed, could find that the two works are substantially similar.” Arica Inst, Inc. v. Palmer," }, { "docid": "11196023", "title": "", "text": "showing the absence of any genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “A party opposing a ... motion for summary judgment bears the burden of going beyond the pleadings, and ‘designating specific facts showing that there is a genuine issue for trial.’ ” Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir.2002) (quoting Celotex, 477 U.S. at 324, 106 S.Ct. 2548). The court must view the evidence in the record in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor. See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000). III. Copyright Principles “In a copyright infringement case, the plaintiff must show: (i) ownership of a valid copyright; and (ii) unauthorized copying of the copyrighted work.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003). The first element, plaintiffs’ ownership of a valid copyright, is undisputed for purposes of this motion. To satisfy the second element, unauthorized copying, “a plaintiff must show both that his work was ‘actually copied’ and that the portion copied amounts to an ‘improper or unlawful appropriation.’ ” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003) (internal citation omitted). “Actual copying may be established either by direct evidence or circumstantial proof that the alleged infringer had access to the protected work and that the allegedly infringing work bears a ‘probative similarity’ to the copyrighted work.” Jean v. Bug Music, Inc., No. 00CIV4022(DC), 2002 WL 287786, *4 (S.D.N.Y. Feb. 27, 2002), citing Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70, 75 (2d Cir.1997). “Once copying has been established, a plaintiff must next demonstrate that the copying was unlawful by showing that there is a substantial similarity between the protectible elements in the two works.” Hogan v. DC Comics, 48 F.Supp.2d 298, 307 (S.D.N.Y.1999) (internal citations omitted). “The copied elements of the work must be original and nontrivial to constitute improper appropriation.” Jean, 2002 WL 287786 at *5, citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499" }, { "docid": "1062518", "title": "", "text": "consisting of evidence that the alleged infringer had access to the protected work and “that there are similarities between the two works that are probative of copying.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003) (internal quotation marks omitted); see Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70, 74-75 (2d Cir.1997) (using the term “probative similarity” to describe the similarity required at this stage of the analysis). “Access may be ... inferred from the fact that a work was widely disseminated or that a party had a reasonable possibility of viewing the prior work.” Boisson v. Banian, Ltd., 273 F.3d 262, 270 (2d Cir.2001). “A reasonable possibility” is not simply a “bare possibility”; “access cannot be based on mere speculation or conjecture.” Jorgensen, 351 F.3d at 51 (internal quotations omitted). The copyright owner must offer “significant, affirmative and probative evidence” to support a claim of access. Id. (internal quotations omitted). The existence of similarities supports the inference of copying, and a probative similarity “requires only the fact that the infringing work copies something from the copyrighted work.” Ringgold, 126 F.3d at 75. b. Improper Appropriation Once actual copying has been established, the copyright owner must then satisfy the “improper appropriation” requirement by demonstrating that “substantial similarities” as to the protected elements of the work would cause an average lay observer to “recognize the alleged copy as having been appropriated from the copyrighted work.” Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 911-12 (2d Cir.1980) (quotations and citations omitted). “For [this] prong it is essential that the similarity relate to copyrightable material.” McDonald v. Multimedia Entm’t, Inc., No. 90 Civ. 6356(KC), 1991 WL 311921, at *2, 1991 U.S. Dist. LEXIS 10649, at *6 (S.D.N.Y. July 19, 1991). When similar works resemble each other only in unprotected aspects — for example, when similarities inhere in ideas, which are by definition unprotected, or in expression that is not proprietary to plaintiff — defendant prevails. 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.03[B][2] (2005). Careful scrutiny is necessary when the protected work contains unprotectible elements. See" }, { "docid": "6153921", "title": "", "text": "has alleged- — -but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’ ” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009) (internal citation omitted) (quoting Fed.R.Civ.P. 8(a)(2)) (alteration in original). B. Federal Law Causes of Action Defendants argue that Counts One (copyright infringement) and Three (DMCA violation) fail to state a claim. (Mem. of Law in Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Mem.”) 3; SAC ¶¶ 106-16, 126-33.) 1. Count One: Copyright Infringement There is no disagreement as to the elements Plaintiffs must establish to state a claim for copyright infringement. (Defs.’ Mem. 3; Pis.’ Mem. of Law in Opp’n to Defs.’ Mot. to Dismiss (“Pis.’ Mem.”) 4.) “ ‘To prevail on a claim of copyright infringement, the plaintiff must demonstrate both (1) ownership of a valid copyright and (2) infringement of the copyright by the defendant.’ ” Cameron Indus., Inc. v. Caravan, Ltd., 676 F.Supp.2d 280, 283-84 (S.D.N.Y.2009) (quoting Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 109-10 (2d Cir.2001)); see also Porto v. Guirgis, 659 F.Supp.2d 597, 608 (S.D.N.Y.2009) (requiring “ ‘ownership of a valid copyright, and [ ] copying of constituent elements of the work that are original’ ” (quoting Williams v. Crichton, 84 F.3d 581, 587 (2d Cir.1996))); Lewinson v. Henry Holt & Co., 659 F.Supp.2d 547, 559 (S.D.N.Y.2009) (same) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)); R.F.M.AS., Inc. v. Mimi So, 619 F.Supp.2d 39, 51 (S.D.N.Y.2009) (requiring ownership of a valid copyright and “ ‘unauthorized copying of the copyrighted work’” (quoting Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003))). The second element is further broken down into two components: “[t]o establish infringement, the copyright owner must demonstrate that ‘(1) the defendant has actually copied the plaintiffs work; and (2) the copying is illegal because a substantial similarity exists between the defendant’s work and the protect[a]ble elements of the plaintiffs.’ ” Eyal R.D. Corp. v. Jewelex N.Y., Ltd., 576 F.Supp.2d 626, 641 (S.D.N.Y.2008) (quoting Yurman Design, 262 F.3d at" }, { "docid": "3605065", "title": "", "text": "any event their breach of contract claim is either time barred or void under the statute of frauds. Because the two songs are not substantially similar as a matter of law, the copyright claim is dismissed and it is unnecessary to reach the issue of laches. The Court declines to exercise supplemental jurisdiction over the state law breach of contract claim. I. Copyright Infringement A plaintiff asserting a copyright infringement claim must show: “(i) ownership of a valid copyright; and (ii) unauthorized copying of the copyrighted work.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003). The Defendants do not contest that the Plaintiffs have a valid copyright in their work. “To demonstrate unauthorized copying, the plaintiff must first show that his work was actually copied; second, he must establish ‘substantial similarity’ or that the copying amounts to an improper or unlawful appropriation .... ” Tufenkian Imp./Exp. Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 131 (2d Cir.2003) (citation omitted). “Actual copying may be established by direct or indirect evidence.” Boisson v. Banian, Ltd, 273 F.3d 262, 267 (2d Cir.2001) (citation omitted). “The plaintiff then must show that the copying amounts to an improper or unlawful appropriation by demonstrating that substantial similarities relate to pro-tectable material.” Laureyssens v. Idea Group, Inc., 964 F.2d 131, 139-40 (2d Cir.1992) (citation omitted). Because the Plaintiffs’ Song is not “substantially similar” to the Challenged Song, the Plaintiffs’ copyright infringement claim fails. As a result, it is unnecessary to reach the question of whether the Plaintiffs have adequately pled actual copying. A. Substantial Similarity The standard for the substantial similarity inquiry is well established: The standard test for substantial similarity between two items is whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal as the same. In applying the so-called “ordinary observer” test, we ask whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work. Peter F. Gaito Architecture, 602 F.3d at 66 (citation omitted). On occasion ... [the Second Circuit" }, { "docid": "18959148", "title": "", "text": "Hoffman, and common law unfair competition against all the defendants. The plaintiff seeks both injunctive relief and damages. III. “To establish copyright infringement, ‘two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.’ ” Williams v. Crichton, 84 F.3d 581, 587 (2d Cir.1996) (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)); see also ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, 64 (2d Cir.1996); Yurman Design, Inc. v. Golden Treasure Imps., Inc., 275 F.Supp.2d 506, 513 (S.D.N.Y.2003). The parties here do not dispute that the plaintiff has a valid copyright for his novel. Thus, the issue for summary judgment is whether there remains a genuine issue of material fact regarding the second element. To prove the second element of a copyright claim, infringing copying, the plaintiff must demonstrate both that the defendants have actually copied his work, and that such copying was illegal because a “substantial similarity” exists between the allegedly infringing work (the defendants’ play) and the protectible elements of the copyrighted work (the plaintiffs novel). See Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996,1002 (2d Cir.1995); see also Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 123 (2d Cir. 1994); Yurman Design, Inc., 275 F.Supp.2d at 514, 516-17; Odegard, Inc. v. Costikyan Classic Carpets, Inc., 963 F.Supp. 1328,1336 (S.D.N.Y.1997). In the absence of proof of direct copying, the “plaintiff may establish copying circumstantially by demonstrating [ (i) ] that the person who composed the defendant[s’] work had access to the copyrighted material and [ (ii) ] that there are similarities between the two works that are probative of copying.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003). On the issue of probative similarity, the Court asks “whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Blakeman v. The Walt Disney Co., 613 F.Supp.2d 288, 304 (E.D.N.Y.2009) (quoting Warner Bros. v. Amer. Broad. Cos., 654 F.2d 204, 208" }, { "docid": "5035762", "title": "", "text": "motion for additional discovery. DISCUSSION A. Copyright Infringement Where, as here, the parties do not dispute that the plaintiff has a valid copyright, the plaintiff must prove two elements to prevail: (1) actual copying and (2) improper appropriation. Laureyssens v. Idea Group, Inc., 964 F.2d 131, 139-40 (2d Cir.1992). A plaintiff may establish actual copying circumstantially by demonstrating (a) that the defendant had access to the copyrighted material and (b) that the two works exhibit similarities “probative of copying.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003) (quotation marks omitted). Alternatively, a plaintiff may prove actual copying if the “works are so strikingly similar as to preclude the possibility of independent creation.” Repp v. Webber, 132 F.3d 882, 889 (2d Cir.1997) (quotation marks omitted). A plaintiff may demonstrate improper appropriation by showing substantial similarity between the two works. Laureyssens, 964 F.2d at 140. Hence, a court may grant summary judgment for the defendant where “no reasonable jury, properly instructed, could find that the two works are substantially similar.” Arica Inst, Inc. v. Palmer, 970 F.2d 1067, 1072 (2d Cir.1992). The District Court did not err in granting summary judgment. It amply explained why Muller failed to adduce facts from which a reasonably jury could find actual copying or improper appropriation. Indeed, as the District Court’s thorough examination shows, Muller could not prove access, probative similarity, striking similarity, or any element that would support a finding of appropriation. Therefore, substantially for the reasons set out by the District Court, we affirm the judgment of the District Court as to the copyright infringement claim. B. Breach of Implied Contract The District Court granted summary judgment as to the state law breach-of-implied-contract claim on the ground that it was preempted by the Copyright Act. However, after the District Court issued its judgment, we had an opportunity to address the application of preemption under the Copyright Act to claims of breach of an implied contractual promise to pay for ideas. In Forest Park Pictures v. Universal Television Network, Inc., we recently held that “preemption is precluded [by] a contract claim [that] includes" }, { "docid": "6153922", "title": "", "text": "Porto v. Guirgis, 659 F.Supp.2d 597, 608 (S.D.N.Y.2009) (requiring “ ‘ownership of a valid copyright, and [ ] copying of constituent elements of the work that are original’ ” (quoting Williams v. Crichton, 84 F.3d 581, 587 (2d Cir.1996))); Lewinson v. Henry Holt & Co., 659 F.Supp.2d 547, 559 (S.D.N.Y.2009) (same) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)); R.F.M.AS., Inc. v. Mimi So, 619 F.Supp.2d 39, 51 (S.D.N.Y.2009) (requiring ownership of a valid copyright and “ ‘unauthorized copying of the copyrighted work’” (quoting Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003))). The second element is further broken down into two components: “[t]o establish infringement, the copyright owner must demonstrate that ‘(1) the defendant has actually copied the plaintiffs work; and (2) the copying is illegal because a substantial similarity exists between the defendant’s work and the protect[a]ble elements of the plaintiffs.’ ” Eyal R.D. Corp. v. Jewelex N.Y., Ltd., 576 F.Supp.2d 626, 641 (S.D.N.Y.2008) (quoting Yurman Design, 262 F.3d at 110); see also Cameron Indus., 676 F.Supp.2d at 284 (same); Psihoyos v. Nat’l Geographic Soc’y, 409 F.Supp.2d 268, 273 (S.D.N.Y.2005) (same) (quoting Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir.1995)); Maharishi Hardy Blechman Ltd. v. Abercrombie & Fitch Co., 292 F.Supp.2d 535, 553 (S.D.N.Y.2003) (same). In this case, Defendants concede that Plaintiffs have pled actual copying, and do not contest that, if the works at issue are protectable, Plaintiffs own a copyright. (Defs.’ Mem. 3-8.) Instead, Defendants argue that Plaintiffs “have not validly al leged infringement of protectable elements of Plaintiffs’ work.” (Id. at 8.) There are three levels of generality at which Plaintiffs could be alleging copyright infringement. The lowest level of generality is the raw data from which the BanxQuote Indices are created (the “raw data”). The second level of generality is the product of the raw data, i.e. the actual average listed in the BanxQuote Indices (the “final value”). The third level of generality is the arrangement and presentation of the final values (the “arrangement”). Both the final value" }, { "docid": "1062517", "title": "", "text": "state a claim under the Lanham Act. BDP moves for additional discovery pursuant to Rule 56(f). DISCUSSION I discuss first the copyright claim, second the Lanham Act claim, and third the Rule 56(f) motion. A. Copyright Infringement 1. Applicable Law To prevail on a claim of copyright infringement, a plaintiff must prove two elements: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Service Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). As BDP provided the Court with a copy of the certificate of copyright registration for the BDP Photograph, and Kate Spade does not contest the validity of the copyright, I assume BDP owns a valid copyright in the BDP Photograph. (See Compl. Ex. A; Kate Spade Mem. at 3-4). The second element, copying, is comprised of two requirements: actual copying and improper appropriation. a. Actual Copying Actual copying may be established by either (1) direct evidence of copying or (2) circumstantial proof of copying, consisting of evidence that the alleged infringer had access to the protected work and “that there are similarities between the two works that are probative of copying.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003) (internal quotation marks omitted); see Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70, 74-75 (2d Cir.1997) (using the term “probative similarity” to describe the similarity required at this stage of the analysis). “Access may be ... inferred from the fact that a work was widely disseminated or that a party had a reasonable possibility of viewing the prior work.” Boisson v. Banian, Ltd., 273 F.3d 262, 270 (2d Cir.2001). “A reasonable possibility” is not simply a “bare possibility”; “access cannot be based on mere speculation or conjecture.” Jorgensen, 351 F.3d at 51 (internal quotations omitted). The copyright owner must offer “significant, affirmative and probative evidence” to support a claim of access. Id. (internal quotations omitted). The existence of similarities supports the inference of copying, and a probative similarity “requires only the fact that the infringing work copies" }, { "docid": "20299787", "title": "", "text": "are similarities between the two works that would not be expected to arise if the works had been created independently. In this analysis, a court must examine the entire work, not just the protectible elements.” Eve of Milady v. Moonlight Design Inc., 48 U.S.P.Q.2d 1809, 1812 (S.D.N.Y.1998) (internal quotations and citations omitted); Odegard, Inc. v. Costikyan Classic Carpets, Inc., 963 F.Supp. 1328, 1337 (S.D.N.Y.1997) (“ ‘Substantial similarity’ for the purposes of proving ‘actual copying’ through circumstantial evidence is different from ‘substantial similarity’ for the purposes of showing illegal copying. Thus, courts have referred to ‘substantial similarity,’ in the context of determining ‘actual copying’ as ‘probative similarity’ to distinguish it from the demonstration of ‘substantial similarity’ needed to prove illegal copying.”) (internal citations omitted). In determining probative similarity, the Court should ask “whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Warner Bros. v. Amer. Broad. Cos., 654 F.2d 204, 208 (2d Cir.1981); see also O.P. Solutions, Inc. v. Intellectual Property Network, Ltd., No. 96 Civ. 7952(LAP), 1999 WL 47191, at *3 (S.D.N.Y. Feb. 2, 1999) (stating that probative similarities are those that, “in the normal course of events, would not be expected to arise independently in the two works.”) (citing Melville B. Nimmer & David Nimmer, 3 Nimmer on Copyrights, § 13.03[B], at 13-11 to 13-13 (1995)). In doing so, the Court should note similarities and dissimilarities “in such aspects as the total concept and feel, theme, characters, plot, sequence, pace, and setting.” Williams, 84 F.3d at 588. Once a plaintiff has established that the defendant had access to the protected work and that a “probative similarity” exists between the entirety of that work and the allegedly infringing work, the Court then must determine whether, in the eyes of a “lay observer,” a “substantial similarity exists between the allegedly infringing work and the protectible elements of plaintiffs.” Well-Made Toy, 210 F.Supp.2d at 159 (emphasis added); see also Williams, 84 F.3d at 587 (stating that there is no substantial similarity as a matter of law “[i]f ‘the similarity concerns only noncopyrightable elements" }, { "docid": "20639951", "title": "", "text": "‘material’ for these purposes if it ‘might affect the outcome of the suit under governing law.’ ” Kinsella v. Rumsfeld, 320 F.3d 309, 311 (2d Cir.2003) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). II. Federal Intellectual Property Claims While graphic representations of characters such as Sqrat are often protected both by copyright law and by trademark law, see Museum Boutique Intercontinental, Ltd. v. Picasso, 880 F.Supp. 153, 167 (S.D.N.Y.1995), the purpose and scope of the respective bodies of law are distinct. I shall discuss each claim in turn. A. Copyright Claim Regarding the Sqrat Logo In order to prove copyright infringement, the owner of a valid copyright is required to show both that the defendant actually copied her work, and that the copying amounts to an improper or unlawful appropriation of the owner’s protectible material. Laureyssens v. Idea Group, Inc., 964 F.2d 131, 139-40 (2d Cir.1992). The first element, actual copying, “may be established either by direct evidence of copying or by indirect evidence, including access to the copyrighted work, similarities that are probative of copying between the works, and expert testimony.” Id. at 140. If actual copying is shown, “plaintiff must then show that the copying amounts to an improper appropriation by demonstrating that substantial similarity to protected material exists” between the protected material in plaintiffs work and the defendant’s allegedly infringing work. Id. See also Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 131 (2d Cir.2003); Castle Rock Entm’t, Inc. v. Carol Publ’g Group, Inc., 150 F.3d 132, 137—38 (2d Cir.1998). 1. Actual Copying of the Sqrat Logo In order to withstand defendants’ motion as to her copyright claim, plaintiff must submit evidence creating a genuine issue of material fact as to whether defendants actually copied Sqrat. Since direct proof of such copying is seldom available, courts have recognized that a plaintiff may satisfy her burden via circumstantial evidence, by showing that defendants had access to the allegedly infringed work, and that there are similarities between the works that are probative of copying. Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003)" }, { "docid": "15603620", "title": "", "text": "F.3d 206, 219 (2d Cir.2004). The non-moving party, however, “may not rely on mere conclusory allegations or speculation, but instead must offer some hard evidence” in support of its factual assertions. Id. (quoting D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.1998)). B. O’Keefe’s Copyright Claim Fails Because He Cannot Demonstrate Actual Copying “In order to establish liability for copyright infringement, a plaintiff must show (1) ownership of a valid copyright, (2) actual copying of the copyrighted work, and (3) that the copying amounts to an ‘improper’ or ‘unlawful’ appropriation ... by demonstrating that substantial similarity to protected material exists between the two works.” Laureyssens v. Idea Group, Inc., 964 F.2d 131, 139-40 (2d Cir.1992) (quoting Amstein v. Porter, 154 F.2d 464, 468 (2d Cir.1946)). Because no reasonable finder of fact could determine, based on the record in this action, that defendants actually copied plaintiffs work, summary judgment dismissing plaintiffs copyright claim is granted. Where, as here, a plaintiff has not adduced direct evidence that the defendant actually copied his work, indirect proof of copying may suffice to overcome summary judgment. Laureyssens, 964 F.2d at 140. A common form of indirect proof of copying “is a showing of defendant’s opportunity to come into contact with plaintiffs work and such similarities between the works which, under all the circumstances, make independent creation unlikely.” Id. (quoting Latman, “Probative Similarity” as Proof of Copying: Toward Dispelling Some Myths in Copyright Infringement, 90 Colum. L. Rev. 1187, 1214 (1990)). These two factors are often denominated “access” and “probative similarity.” In general, “[t]here is an inverse relationship between access and probative similarity such that the stronger the proof of similarity, the less the proof of access is required.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 56 (2d Cir.2003) (internal citation and quotation marks omitted). Indeed, where “the works in question are ‘so strikingly similar as to preclude the possibility of independent creation, copying may be proved without a[n affirmative] showing of access.’ ” Id. (quoting Lipton v. Nature Co., 71 F.3d 464, 471 (2d Cir.1995)). On the record in this case, no" }, { "docid": "5300111", "title": "", "text": "F.2d 131, 139-40 (2d Cir.1992). a. Actual Copying Actual copying may be established by direct or circumstantial evidence. The latter includes proof, for example, that (1) the alleged infringer had access to the protected work and (2) the two works share similarities “probative of copying.” Jorgensen, 351 F.3d at 51. Access may be “inferred from the fact that a work was widely disseminated or that a party had a reasonable possibility of viewing the prior work.” Boisson v. Banian, Ltd., 273 F.3d 262, 270 (2d Cir.2001). “A reasonable possibility” is not simply a “bare possibility”; “access cannot be based on mere speculation or conjecture.” Jorgensen, 351 F.3d at 51 (internal quotations omitted). The copyright owner must instead present “significant, affirmative and probative evidence” -to support a claim of access. Id. (internal quotations omitted). If the copyright owner fails to produce evidence of both access and probative similarity, he may defeat a motion for summary judgment by showing that the works in question are “strikingly similar.” Repp & K & R Music, Inc. v. Webber, 132 F.3d 882, 889 (2d Cir.1997) (“We have held that where there are striking similarities probative of copying, proof of access may be inferred.”), cert. denied, 525 U.S. 815, 119 S.Ct. 52, 142 L.Ed.2d 40 (1998). Two works are considered to be “strikingly similar” if creation of one is so dependent on the other “as to preclude the possibility of independent creation.” Id. (internal quotations omitted). Striking similarity can be shown through expert testimony. See Gaste v. Kaiserman, 863 F.2d 1061, 1068 (2d Cir.1988). A defendant may rebut a prima facie case of infringement by introducing evidence of independent creation. Repp & K & R Music, Inc., 132 F.3d at 889. b. Improper Appropriation Once actual copying has been established, the copyright owner must then satisfy the “ ‘improper appropriation’ requirement by demonstrating that ‘substantial similarities’ as to the protected elements of the work would cause an average lay observer to ‘recognize the alleged copy as having been appropriated from the copyrighted work.’ ” Bill Diodato Photog raphy, LLC v. Kate Spade, LLC, 388 F.Supp.2d 382," }, { "docid": "20299786", "title": "", "text": "is seldom available, a plaintiff may establish copying circumstantially by demonstrating that the person who composed the defendant’s work had access to the copyrighted material ... and that there are similarities between the two works that are probative of copying.” Jorgensen, 351 F.3d at 51 (internal quotations and citations omitted); Adams v. Warner Bros. Pictures Network, No. 05 Civ. 5211(SLT)(LB), 2007 WL 1959022, at *3 (E.D.N.Y. June 29, 2007) (“In the context of deciding whether the defendant copied at all (as distinguished from whether it illegally copied), similarity relates to the entire work, not just the protectible elements, and is often referred to as ‘probative similarity.’ ”) (internal citation omitted) (emphasis in original); see also Fisher-Price, Inc., 25 F.3d at 123 (2d Cir.1994); Computer Associates Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 701 (2d Cir.1992). “Probative similarity is a less demanding test than substantial similarity and requires only that the works are similar enough to support an inference that the defendant copied the plaintiffs work. Stated somewhat differently, the plaintiff must establish that there are similarities between the two works that would not be expected to arise if the works had been created independently. In this analysis, a court must examine the entire work, not just the protectible elements.” Eve of Milady v. Moonlight Design Inc., 48 U.S.P.Q.2d 1809, 1812 (S.D.N.Y.1998) (internal quotations and citations omitted); Odegard, Inc. v. Costikyan Classic Carpets, Inc., 963 F.Supp. 1328, 1337 (S.D.N.Y.1997) (“ ‘Substantial similarity’ for the purposes of proving ‘actual copying’ through circumstantial evidence is different from ‘substantial similarity’ for the purposes of showing illegal copying. Thus, courts have referred to ‘substantial similarity,’ in the context of determining ‘actual copying’ as ‘probative similarity’ to distinguish it from the demonstration of ‘substantial similarity’ needed to prove illegal copying.”) (internal citations omitted). In determining probative similarity, the Court should ask “whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Warner Bros. v. Amer. Broad. Cos., 654 F.2d 204, 208 (2d Cir.1981); see also O.P. Solutions, Inc. v. Intellectual Property Network, Ltd., No. 96 Civ. 7952(LAP)," }, { "docid": "15603621", "title": "", "text": "proof of copying may suffice to overcome summary judgment. Laureyssens, 964 F.2d at 140. A common form of indirect proof of copying “is a showing of defendant’s opportunity to come into contact with plaintiffs work and such similarities between the works which, under all the circumstances, make independent creation unlikely.” Id. (quoting Latman, “Probative Similarity” as Proof of Copying: Toward Dispelling Some Myths in Copyright Infringement, 90 Colum. L. Rev. 1187, 1214 (1990)). These two factors are often denominated “access” and “probative similarity.” In general, “[t]here is an inverse relationship between access and probative similarity such that the stronger the proof of similarity, the less the proof of access is required.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 56 (2d Cir.2003) (internal citation and quotation marks omitted). Indeed, where “the works in question are ‘so strikingly similar as to preclude the possibility of independent creation, copying may be proved without a[n affirmative] showing of access.’ ” Id. (quoting Lipton v. Nature Co., 71 F.3d 464, 471 (2d Cir.1995)). On the record in this case, no reasonable trier of fact could find that defendants actually copied plaintiffs work. 1. Plaintiff Has Failed to Demonstrate Access O’Keefe has failed to adduce evidence demonstrating that the persons responsible for creating defendants’ work had access to his www.mycardmywork.com website. “In order to support a claim of access, a plaintiff must offer ‘significant, affirmative and probative evidence’ ” that an alleged infringer had a “ ‘reasonable probability’ — not simply a ‘bare possibility’ ” — of being exposed to his work. Jorgensen, 351 F.3d at 51 (quoting Scott v. Paramount Pictures Corp., 449 F.Supp. 518, 520 (D.D.C.1978); Gaste v. Kaiserman, 863 F.2d 1061, 1066 (2d Cir.1988)); see also Clonus Assocs. v. Dreamworks, LLC, 457 F.Supp.2d 432, 439 (S.D.N.Y.2006). “As proof of access, a plaintiff may show that (1) the infringed work has been widely disseminated or (2) a particular chain of events exists by which the defendants might have gained access to the work.” Tomasini v. Walt Disney Co., 84 F.Supp.2d 516, 519 (S.D.N.Y.2000) (internal citations and quotation marks omitted). There is no dispute that" }, { "docid": "18959149", "title": "", "text": "between the allegedly infringing work (the defendants’ play) and the protectible elements of the copyrighted work (the plaintiffs novel). See Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996,1002 (2d Cir.1995); see also Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 123 (2d Cir. 1994); Yurman Design, Inc., 275 F.Supp.2d at 514, 516-17; Odegard, Inc. v. Costikyan Classic Carpets, Inc., 963 F.Supp. 1328,1336 (S.D.N.Y.1997). In the absence of proof of direct copying, the “plaintiff may establish copying circumstantially by demonstrating [ (i) ] that the person who composed the defendant[s’] work had access to the copyrighted material and [ (ii) ] that there are similarities between the two works that are probative of copying.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003). On the issue of probative similarity, the Court asks “whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Blakeman v. The Walt Disney Co., 613 F.Supp.2d 288, 304 (E.D.N.Y.2009) (quoting Warner Bros. v. Amer. Broad. Cos., 654 F.2d 204, 208 (2d Cir.1981)). Similarities between the two works are probative only if the similarities “would not be expected to arise if the works had been created independently.” O’Keefe v. Ogilvy & Mather Worldwide, Inc., 590 F.Supp.2d 500, 517 (S.D.N.Y. 2008) (quoting Velez v. Sony Discos, No. 05 Civ. 0615, 2007 WL 120686, at *6 (S.D.N.Y. Jan. 16, 2007)). In this case, the defendants deny that they copied the plaintiffs work but their motion for summary judgment is not based on the lack of copying. Therefore, the issues of copying, access, and probative similarity are not at issue on this motion. Rather, the defendants argue only that there is no substantial similarity between the defendants’ play and the protectible elements of the plaintiffs novel. A. The test for “substantial similarity” is the “ordinary observer test.” See Knitwaves, 71 F.3d at 1002; Fisher-Price, 25 F.3d at 123. The ordinary observer test asks “whether the ordinary observer, unless he set out to detect the disparities [between the two works], would be disposed to overlook them, and regard their aesthetic" }, { "docid": "20639952", "title": "", "text": "probative of copying between the works, and expert testimony.” Id. at 140. If actual copying is shown, “plaintiff must then show that the copying amounts to an improper appropriation by demonstrating that substantial similarity to protected material exists” between the protected material in plaintiffs work and the defendant’s allegedly infringing work. Id. See also Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 131 (2d Cir.2003); Castle Rock Entm’t, Inc. v. Carol Publ’g Group, Inc., 150 F.3d 132, 137—38 (2d Cir.1998). 1. Actual Copying of the Sqrat Logo In order to withstand defendants’ motion as to her copyright claim, plaintiff must submit evidence creating a genuine issue of material fact as to whether defendants actually copied Sqrat. Since direct proof of such copying is seldom available, courts have recognized that a plaintiff may satisfy her burden via circumstantial evidence, by showing that defendants had access to the allegedly infringed work, and that there are similarities between the works that are probative of copying. Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003) (citing cases). Expert testimony may be offered in support of a claim of actual copying. Laureyssens, 964 F.2d at 140. Access. “Access” means that the alleged infringer had a reasonable opportunity to observe or copy plaintiffs work. Tisi v. Patrick, 97 F.Supp.2d 539, 547 (S.D.N.Y.2000). “In order to support a claim of access, a plaintiff must offer significant, affirmative and probative evidence.” Jorgensen, 351 F.3d at 51 (citation and internal punctuation omitted). Plaintiffs showing of access is exceeding ly weak. The primary foundation for this aspect of her case is her active “pitching” of Sqrat to employees and agents of Fox Family Worldwide, Inc. (“FFW”). Silber-stein asserts that a relationship exists between FFW and Fox Family Films, and implies that FFW owns or controls Fox Family Films. (Cane Decl. ¶ 44.) It is undisputed that Fox Family Films was the name of the wholly owned subsidiary of Fox that produced Ice Age at the time development of the film began, and that the corporate name changed to its current name, Twentieth Century Fox Animation, at" }, { "docid": "18119890", "title": "", "text": "of his music to Pope. Id. at 171:5-25. Pope does not remember meeting plaintiffs, or ever hearing or receiving their music. Pope Decl. ¶¶ 5-6. For purposes of their motion, however, the UMG Defendants do not dispute that Lessam met Pope at Sam Ash and sold him music equipment several times. Discussion Under Federal Rule of Civil Procedure 56(a), “the court shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” “This standard requires that courts resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.” Spinelli v. City of New York, 579 F.3d 160, 166 (2d Cir.2009) (internal quotation marks omitted). Elements of Copyright Infringement “In a copyright infringement case, the plaintiff must show: (i) ownership of a valid copyright; and (ii) unauthorized copying of the copyrighted work.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003), citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); Castle Rock Entm’t, Inc. v. Carol Publ’g Group, Inc., 150 F.3d 132, 137 (2d Cir., 1998). For purposes of their motions, defendants admit plaintiffs’ ownership of the copyright in “Elevator”. To establish unauthorized copying, “a plaintiff must show both that his work was ‘actually copied’ and that the portion copied amounts to an ‘improper or unlawful appropriation.’ ” Jorgensen, 351 F.3d at 51, quoting Castle Rock, 150 F.3d at 137. Actual copying may be established with evidence that the composer of the defendant’s work had access to the copyrighted work, “and that there are similarities between the two works that are ‘probative of copying.’ ” Jorgensen, 351 F.3d at 51, quoting Repp v. Webber, 132 F.3d 882, 889 (2d Cir.1997). “The plaintiff then must show that the copying amounts to an ‘improper’ or ‘unlawful’ appropriation by demonstrating that substantial similarities relate to protectible material.” Laureyssens v. Idea Group, Inc., 964 F.2d 131, 139-40 (2d Cir.1992) (citation omitted). 1." }, { "docid": "11196024", "title": "", "text": "“a plaintiff must show both that his work was ‘actually copied’ and that the portion copied amounts to an ‘improper or unlawful appropriation.’ ” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003) (internal citation omitted). “Actual copying may be established either by direct evidence or circumstantial proof that the alleged infringer had access to the protected work and that the allegedly infringing work bears a ‘probative similarity’ to the copyrighted work.” Jean v. Bug Music, Inc., No. 00CIV4022(DC), 2002 WL 287786, *4 (S.D.N.Y. Feb. 27, 2002), citing Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70, 75 (2d Cir.1997). “Once copying has been established, a plaintiff must next demonstrate that the copying was unlawful by showing that there is a substantial similarity between the protectible elements in the two works.” Hogan v. DC Comics, 48 F.Supp.2d 298, 307 (S.D.N.Y.1999) (internal citations omitted). “The copied elements of the work must be original and nontrivial to constitute improper appropriation.” Jean, 2002 WL 287786 at *5, citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author. Feist, 499 U.S. at 348, 111 S.Ct. 1282. “Careful scrutiny is necessary when the protected work contains unprotectible elements.” Jean, 2002 WL 287786 at *4, citing Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir.1995). “[A] court must attempt to extract the unprotectible elements from [its] consideration and ask whether the protectible elements, standing alone, are substantially similar.” Id., quoting Knitwaves, 71 F.3d at 1002 (emphasis in original). The copyright owner must demonstrate “that substantial similarities as to the protected elements of the work would cause an average lay observer to recognize the alleged copy as having been appropriated from the copyrighted work.” Jean, 2002 WL 287786 at *4. A court must “examine the total concept and" }, { "docid": "20299785", "title": "", "text": "340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)); see Well-Made Toy Mfg. Corp. v. Goffa Int’l Corp., 210 F.Supp.2d 147, 158 (E.D.N.Y.2002). For the purposes of the instant motion, defendants do not contest that plaintiff has a valid copyright to the treatment and amplification of “Go November.” (See Defendant’s Memorandum of Law, at 11.) Therefore, in order to meet the second requirement of the Feist analysis, plaintiff must demonstrate the following: “(1) the defendant has actually copied the plaintiffs work; and (2) the copying is illegal because a substantial similarity exists between the defendant’s work and the protectible elements of plaintiffs.” Fisher-Price, Inc. v. Well-Made Toy Mfg., Corp., 25 F.3d 119, 122-23 (2d Cir.1994) (emphasis in original); see Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003) (“[A] plaintiff must show both that his work was ‘actually copied’ and that the portion copied amounts to an ‘improper or unlawful appropriation.’ ”) (quoting Castle Rock Entm’t, Inc. v. Carol Publ’g Group, Inc., 150 F.3d 132, 137 (2d Cir.1998)). However, “[b]ecause direct evidence of copying is seldom available, a plaintiff may establish copying circumstantially by demonstrating that the person who composed the defendant’s work had access to the copyrighted material ... and that there are similarities between the two works that are probative of copying.” Jorgensen, 351 F.3d at 51 (internal quotations and citations omitted); Adams v. Warner Bros. Pictures Network, No. 05 Civ. 5211(SLT)(LB), 2007 WL 1959022, at *3 (E.D.N.Y. June 29, 2007) (“In the context of deciding whether the defendant copied at all (as distinguished from whether it illegally copied), similarity relates to the entire work, not just the protectible elements, and is often referred to as ‘probative similarity.’ ”) (internal citation omitted) (emphasis in original); see also Fisher-Price, Inc., 25 F.3d at 123 (2d Cir.1994); Computer Associates Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 701 (2d Cir.1992). “Probative similarity is a less demanding test than substantial similarity and requires only that the works are similar enough to support an inference that the defendant copied the plaintiffs work. Stated somewhat differently, the plaintiff must establish that there" } ]

[ { "docid": "12910879", "title": "", "text": "an October 24, 1989, memorandum of Tour Superintendent Ziniti, which purports to recount the substance of an early September conversation with Stewart about the events of July 5 and 6. Ziniti’s recollection is at odds with the letter of Dr. Levoy and the affidavit of Stewart. Because the government concedes, as it must, that emergency absences do not count toward the 48 hours of unscheduled absences allowed under the second last chance settlement agreement, on balance, this record presents a legitimate factual issue of whether there was a breach. We think the board must first decide whether Stewart breached the agreement; only if he has, should it consider the enforceability of his appeal waiver. Though “[tjhere is no statutory authority requiring the [board] to hold a hearing on the threshold issue of jurisdiction,” Manning v. Merit Systems Protection Bd., 742 F.2d 1424, 1427 (Fed.Cir.1984), “it would be appropriate for the [board] to honor a request for hearing where petitioner’s allegations raise non-frivolous issues of fact relating to jurisdiction which cannot be resolved simply on submissions of documentary evidence.” Id. at 1428; McCall, 839 F.2d at 669. Conclusion Accordingly, the decision of the board is vacated and the case is remanded for further proceedings consistent with this opinion. COSTS The United States Postal Service will bear the costs of this appeal. VACATED AND REMANDED. The waiver at issue here applies only to the facts underlying and the legal validity of the original removal. Stewart did not waive his right to contest breach of the agreement itself. We express no opinion whether an agency could require an employee to waive even this right and still successfully enforce the agreement. Cf. McCall, 839 F.2d at 667 (“We think it is implicit in the agreement here that the agency must abide by it in good faith. Thus, the agreement itself serves as a check on arbitrary agency action. If an agency acts in bad faith or takes other arbitrary or capricious action, as a breaching party it would not be able to enforce the agreement”)." } ]

[ { "docid": "22033525", "title": "", "text": "that 5 U.S.C. § 3304(f)(1) provides an opportunity for both preference-eligible veterans and those honorably separated after three or more years of active service to compete for vacant federal positions, the AJ explained that 5 U.S.C. § 3330a provides a right of appeal to the Board only to preference-eligible veterans. Id. at 2-3. The AJ therefore concluded that, because Campion did not allege or show that he was a preference-eligible veteran, the Board lacked jurisdiction over his appeal. Id. at 3. Additionally, the AJ found that the Board lacked jurisdiction because Campion did not allege that any statute or regulation creating a right to veterans’ preference had been violated. Id. The AJ also rejected Campion’s argument that the Board had jurisdiction because the Office of Personnel Management (“OPM”) advised him, albeit incorrectly, that he had an appealable action and the Department of Labor informed him of Board appeal procedures. Id. The AJ thus dismissed Campion’s appeal and the AJ’s initial decision became the final decision of the Board. Campion timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). DISCUSSION Our scope of review in an appeal from a decision of the Board is limited. We must affirm the Board’s decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed.Cir.1998). Whether the Board has jurisdiction to adjudicate an appeal is a question of law that we review de novo. Herman v. Dep’t of Justice, 193 F.3d 1375, 1378 (Fed.Cir.1999). As petitioner, Campion has the burden of establishing the Board’s jurisdiction by preponderant evidence. See Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885, 886 (Fed.Cir.1998); 5 C.F.R. § 1201.56(a)(2)(i) (2003). On appeal, Campion argues that the Board erred in dismissing his appeal for lack of jurisdiction. Campion contends that the AJ misconstrued the VEOA, arguing that the VEOA treats veterans who" }, { "docid": "22258406", "title": "", "text": "bears the burden of establishing error in the Board’s decision. Cheeseman, 791 F.2d at 140. Before the Board, Link had the burden of establishing jurisdiction by a preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2) (1994); Clark v. United States Postal Serv., 989 F.2d 1164, 1167 (Fed.Cir.1993); Burgess v. Merit Sys. Protection Bd., 758 F.2d 641, 642-43 (Fed.Cir.1985). The Board has taken the position that it lacks jurisdiction over adverse actions where, as here, an individual has waived his or her appeal rights in a last-chance agreement. See, e.g., McCall v. United States Postal Serv., 839 F.2d 664, 668-69 (Fed.Cir.1988). However, a waiver of appeal rights will not be enforced if an agency breaches a last-chance agreement. Id. at 667. II On appeal, Link makes two arguments. First, he contends that the AJ erred as a matter of law in holding that, in order to establish breach on the part of Customs, he had to show that the agency acted in bad faith or arbitrarily and capriciously. According to Link, it was enough for him to show that Customs breached the agreement by not affording him the procedural protections for which he had bargained. Second, Link argues that, under the standard which should have been applied by the AJ, he established that the agency breached Articles 4 and 6 of the last-chance agreement and that therefore the agency was not entitled to have the waiver of appeal rights enforced against him. Treasury disagrees. It contends that, as far as a claim of breach is concerned, the exclusive grounds for not enforcing a waiver of appeal rights in a settlement agreement are bad faith or arbitrary and capricious conduct by the agency. Treasury also contends that the finding of the AJ that Customs did not act in bad faith is supported by substantial evidence. Accordingly, argues Treasury, we should affirm the decision of the Board dismissing Link’s appeal for lack of jurisdiction. We conclude that Link is correct. Ill The AJ correctly stated that Link could overcome his waiver of appeal rights by proving that he complied with the last-chance agreement," }, { "docid": "23591848", "title": "", "text": "agreement. Mr. Getz also pointed out that Dr. Meegan had stated in his April 18th memorandum to Dr. Adams that he had not seen Mr. Gilbert since his visit on December 6, 2000. Mr. Getz wrote that, in accordance with the provisions of subparagraphs 3 and 4 of paragraph II.(i) of the last-chance agreement, he was putting into effect the July 29, 2000 removal action that had been held in abeyance provided that Mr. Gilbert complied with the terms of the agreement. Mr. Gilbert timely appealed his removal to the Board. III. Mr. Gilbert had the burden of establishing by a preponderance of the evidence that the Board had jurisdiction over his appeal. See 5 C.F.R. § 1201(a)(2)(i). Pursuant to 5 U.S.C. § 7701(a), a federal employee, such as Mr. Gilbert, may appeal to the Board “from any action which is appealable to the Board under any law, rule, or regulation.” By regulation, removal actions may be appealed to the Board. See id. § 1201.3(a)(2). However, it is well-settled that a waiver of appeal rights divests the Board of jurisdiction over the appeal of an adverse action, such as a removal. Link v. Dep’t of Treas., 51 F.3d 1577, 1581 (Fed.Cir.1995); McCall v. United States Postal Serv., 839 F.2d 664, 668-69 (Fed.Cir.1988); Merriweather v. Dep’t of Transp., 59 M.S.P.R. 434, 435-39 (1993). In the last-chance agreement, Mr. Gilbert agreed that if he breached the agreement, he would be removed, and he waived his right to appeal the removal. Thus, to establish Board jurisdiction, Mr. Gilbert had the burden of proving that he did not breach the agreement. See Gibson v. Dep’t of Veterans Affairs, 160 F.3d 722, 726 (Fed.Cir.1998); Link, 51 F.3d at 1581. Before the Board, Mr. Gilbert advanced two arguments. First, he urged that the last-chance agreement was invalid for lack of consideration. Second, he argued that he was not in material non-compliance with the agreement so as to trigger his removal and the waiver of appeal rights. Following a hearing, the AJ rejected both contentions. Initial Decision at 5, 7. After holding that the last-chance agreement was" }, { "docid": "23591849", "title": "", "text": "divests the Board of jurisdiction over the appeal of an adverse action, such as a removal. Link v. Dep’t of Treas., 51 F.3d 1577, 1581 (Fed.Cir.1995); McCall v. United States Postal Serv., 839 F.2d 664, 668-69 (Fed.Cir.1988); Merriweather v. Dep’t of Transp., 59 M.S.P.R. 434, 435-39 (1993). In the last-chance agreement, Mr. Gilbert agreed that if he breached the agreement, he would be removed, and he waived his right to appeal the removal. Thus, to establish Board jurisdiction, Mr. Gilbert had the burden of proving that he did not breach the agreement. See Gibson v. Dep’t of Veterans Affairs, 160 F.3d 722, 726 (Fed.Cir.1998); Link, 51 F.3d at 1581. Before the Board, Mr. Gilbert advanced two arguments. First, he urged that the last-chance agreement was invalid for lack of consideration. Second, he argued that he was not in material non-compliance with the agreement so as to trigger his removal and the waiver of appeal rights. Following a hearing, the AJ rejected both contentions. Initial Decision at 5, 7. After holding that the last-chance agreement was valid, he turned to the issue of whether Mr. Gilbert had breached the agreement. Id. at 5. The AJ noted that, in his testimony, Mr. Gilbert admitted that he had failed to timely submit the quarterly report due on April 1, 2001, and that he had not provided the information from Dr. Meegan that Ms. Fulmore had requested in her letter of February 14, 2001. Id. The AJ also noted that, by not returning to see Dr. Meegan after December 6, 2000, and by not scheduling appointments with another health-care provider, Mr. Gilbert had failed to complete all of his after-care requirements. Id. In addition, the AJ pointed out that Mr. Gilbert conceded that, after his last visit with Dr. Meegan, it was not until April of 2001 that he informed the agency that he had stopped seeing a health care provider. . Id. After rejecting all of Mr. Gilbert’s explanations for his failure to comply with the terms of the last-chance agreement, the AJ found that Mr. Gilbert had “breached at least four provisions" }, { "docid": "11175746", "title": "", "text": "an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (1994); Gibson v. Dep’t of Veterans Affairs, 160 F.3d 722, 725 (Fed.Cir. 1998). The Board’s jurisdiction is not plenary, but is limited to adverse personnel actions made appealable to it by law, rule, or regulation. 5 U.S.C. § 7701(a) (1994); Middleton v. Dep’t of Def., 185 F.3d 1374, 1379 (Fed.Cir.1999). Whether the Board has jurisdiction to adjudicate a particular appeal is a question of law that we review de novo. Middleton, 185 F.3d at 1379. The burden of establishing jurisdiction is on the petitioner. Herman v. Dep’t of Justice, 193 F.3d 1375, 1378 (Fed. Cir.1999). Coursen argues that the Board erred in dismissing his appeal for lack of jurisdiction. Coursen contends that he was entitled to appeal to the Board because he was ineligible to join a collective bargaining unit (“CBU”) and because he performed the job functions of a managerial and supervisory employee. The agency responds that the Board did not err in dismissing Coursen’s appeal because Coursen was not a “supervisor or management employee” under 39 U.S.C. § 1005(a)(4)(A)(ii). The agency also argues that Coursen failed to show that, as a matter of law, he was ineligible for membership in a CBU. We agree with the agency that Coursen was not entitled to appeal to the Board. Under PEARA, a Postal Service employee has the right to appeal an adverse personnel decision to the Board if he has completed at least one year of continuous service and is in the position of a “supervisor or a management employee,” or is engaged in personnel work in other than a purely nonconfidential clerical capacity. 39 U.S.C. § 1005(a)(4)(A)(ii) (1994). Thus, status as a supervisor or a management employee entitles a Postal Service employee to appeal to the Board. In addition, the law provides that a Postal Service employee is precluded from joining a CBU if that employee is a “management official or supervisor,” or is engaged" }, { "docid": "22083174", "title": "", "text": "evidence. 5 U.S.C. § 7703(c). In this petition for review, petitioner alleges that he never agreed to the terms of the November 30, 1999, settlement agreement. First, he asserts that he never signed an agreement. However, it is well-established than an oral settlement agreement is binding on the parties, particularly when the terms are memorialized into the record. See Goodwin v. Dep’t of Treasury, 983 F.2d 226, 228 (Fed.Cir.1992) (holding that oral agreement between employee and agency was binding); see also Boucher v. Dep’t of Treasury, 68 M.S.P.R. 40, 43 (1995); Westfall v. United States Postal Serv., 64 M.S.P.R. 90, 93 (1994). Our case is unlike Mahboob v. Dep’t of Navy, 928 F.2d 1126, 1128-30 (Fed.Cir.1991), where this Court found that an oral settlement was not binding until it was reduced to writing, because the parties in Mahboob clearly did not intend to be bound until a written contract was signed. Petitioner also alleges that he was coerced and intimidated into orally agreeing to the settlement. He claims that the full transcript would support this allegation and that the transcript provided by the administrative judge is incomplete and only contains the final portion of the telephone conference. Based on these allegations, petitioner asks us to overturn the settlement agreement accepted by the administrative judge’s initial decision. It is well-established that in order to set aside a settlement, an appellant must show that the agreement is unlawful, was involuntary, or was the result of fraud or mutual mistake. Wade v. Dep’t of Veteran Affairs, 61 M.S.P.R. 580, 588 (1994). See Harris v. Dep’t of Veteran Affairs, 142 F.3d 1463, 1468 (Fed.Cir.1998); Franklin v. United States Postal Serv., 81 M.S.P.R. 294, 296 (1999). Normally, such issues have been resolved in the first instance by the Board, acting either through the administrative judge or by the Board upon petition for review»' by the party or reopening of the case on its own motion under 5 C.F.R. § 1201.118. See, e.g., Harris, 142 F.3d at 1468. Here, however, petitioner did not raise this issue before the administrative judge and did not raise this issue" }, { "docid": "22092693", "title": "", "text": "the Treasury, 796 F.2d 430, 436 (Fed.Cir.1986). Nor has Gibson identified anything in the record that would show that the testimony relied on by the AJ was “inherently improbable or discredited by undisputed evidence or physical fact.” Hagmeyer v. Department of Treasury, 757 F.2d 1281, 1284 (Fed.Cir.1985) (quoting Dittmore-Freimuth Corp. v. United States, 182 Ct.Cl. 507, 390 F.2d 664, 685 (Ct.Cl.1968)). Thus, the AJ’s finding that a policy existed that prohibited hospital employees from visiting patients in the MICU without prior permission is supported by substantial evidence. II. Gibson had the burden of establishing jurisdiction before the Board by a preponderance of the evidence. See 5 C.F.R. § 1201.56(a)(2) (1998); Link v. Department of the Treasury, 51 F.3d 1577, 1581 (Fed.Cir.1995). On the merits of the breach of the agreement issue, the AJ found that the “appellant has thé burden of proving, by a preponderance of the evidence, that he did not breach the last-chance agreement.” Gibson v. Department of Veterans Affairs, slip op. at 5 (citing Walters v. Department of Agriculture, 63 M.S.P.R. 348, 353 (1994), aff'd, 61 F.3d 919 (Fed.Cir.1995) (Table)). This appears to be a correct statement of the burden on a petitioner as articulated by the Board. See Link, 51 F.3d at 1582 (“Link could overcome his waiver of appeal rights by proving that he complied with the last-chance agreement, that Customs breached the agreement, or that he did not knowingly and voluntarily enter into the agreement.” (dicta)); Rogers v. United States Postal Serv., 59 M.S.P.R. 647, 651 (1993) (“[T]he appellant was required to show that the appeal-rights waiver should not be enforced against him because he did not violate the agreement.”), aff'd, 59 F.3d 181 (Fed.Cir.1995) (Table); Walters v. Department of Agriculture, 63 M.S.P.R. 348, 353 (1994) (same), aff'd, 61 F.3d 919 (Fed.Cir.1995) (Table). In any event, Gibson does not argue that there was an improper allocation of the burden of proof in this case. A threshold issue here is whether a “policy,” as that term is used in the settlement agreement, even existed. If the policy in question was written, either in a regulation" }, { "docid": "22372781", "title": "", "text": "Johnston timely appealed to this court; we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). Discussion The board’s jurisdiction is not plenary, but is limited to those matters over which it has been granted jurisdiction by law, rule or regulation. Herman v. Dep’t of Justice, 198 F.3d 1375, 1378 (Fed.Cir.1999). Whether the board has jurisdiction over an appeal is a question of law that this court reviews de novo. Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480, 1483 (Fed.Cir.1998); Fields v. Dep’t of Justice, 452 F.3d 1297, 1301 (Fed.Cir.2006). Johnston argues that the board erred in dismissing her appeal; she contends she established board jurisdiction by non-frivolous allegations that she suffered reprisal for expressing her opinion that the agency’s implementation of Policy 7.04a would put agency personnel and others at risk for serious injury. We agree. There is a fundamental distinction between the requirements necessary to prevail on the merits of a WPA claim and those sufficient to establish board jurisdiction. To prevail on the merits, an employee must establish, by a preponderance of the evidence, that a protected disclosure was a contributing factor in an adverse personnel action. See Marano v. Dep’t of Justice, 2 F.3d 1137, 1140 (Fed.Cir.1993). At the jurisdictional threshold, however, the employee’s burden is significantly lower: for individual right of action appeals “the Board’s jurisdiction is established by nonfrivolous allegations that the [employee] made a protected disclosure that was a contributing factor to the personnel action taken or proposed.” Stoyanov v. Dep’t of the Navy, 474 F.3d 1377, 1382 (Fed.Cir.2007) (citing Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1325 (Fed.Cir.2006) (en banc)). Thus, Johnston could establish a jurisdictional predicate for her claims by making non-frivolous allegations that: (1) her disclosures were within the purview of the WPA, and (2) she suffered reprisal in the wake of these disclosures. I. Protected Disclosures The WPA protects several types of communications, one being a disclosure regarding what an employee “reasonably believes” to be a “substantial and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8); Herman, 193 F.3d at 1378-79. Johnston alleges she" }, { "docid": "167277", "title": "", "text": "30, 1999, Kannikal appealed his termination to the Merit Systems Protection Board (“MSPB”). . He appealed to the MSPB before June 2, 2000, i.e., during the time period in which the LCSA prohibited him from appealing. The MSPB held that the LCSA barred his appeal. The Court of Appeals for the Federal Circuit upheld this decision, holding that “this court detects no error in the Board’s conclusion that it lacked jurisdiction.” Kannikal v. Dep’t of Justice, 25 Fed.Appx. 874, 877 (Fed.Cir.2001). Res judicata does not bar Kannikal from pursuing the instant action because he filed his EEOC appeal after the LCSA waiver expired and because the MSPB only addressed the LCSA, not the merits of Kan-nikal’s termination claim. In short, the LCSA does not apply after June 2, 2000. Kannikal filed his EEOC charge on April 20, 2001. Neither the LCSA nor the Federal Circuit decision bars this suit. V. Conclusion Section 2401(a) does not apply to Title VII actions. Kannikal was terminated in 1999 and has sought relief for over a decade. While we offer no opinion regarding the merits of his case, we do conclude that § 2401(a) and the LCSA do not preclude this suit. We will vacate the District Court’s judgment and remand for further proceedings consistent with this Opinion. . The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. . With this Opinion, we align ourselves with the only other appeals court to consider this issue, the Court of Appeals for the D.C. Circuit, which recently held that \"28 U.S.C. § 2401(a) does not apply to Title VII civil actions brought by federal employees.\" Howard v. Pritzker, Nos. 12-5370, 12-5392, 775 F.3d 430, 432, 2015 WL 64565, at *1 (D.C.Cir. Jan. 6, 2015). . Kannikal provided several hypothetical examples of the perversity of applying § 2401(a). For example, a claimant may receive a favorable decision from an administrative judge close to the six-year mark. If he waits to see whether the agency will implement the favorable decision, then he risks losing his right to" }, { "docid": "12214306", "title": "", "text": "accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. See 5 U.S.C. § 7703(c);. Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984). Jurisdiction is a question of law; we thus review anew whether the Board had jurisdiction to decide a specific appeal. See Herman v. Department of Justice, 193 F.3d 1375, 1378 (Fed.Cir.1999). The burden of establishing jurisdiction rests on the petitioner, see 5 C.F.R. § 1201.56(a)(2)(i), who must make a non-frivolous allegation of facts sufficient to establish jurisdiction, see Lourens v. Merit Sys. Protection Bd., 193 F.3d 1369, 1371 (Fed.Cir.1999). The jurisdiction of the Board is not plenary. See Serrao v. Merit Sys. Protection Bd., 95 F.3d 1569, 1573 (Fed.Cir.1996). Rather it is \"limited to those matters specifically entrusted to it by statute or regulation.\" Id.; see also 5 U.s.c. § 7701(a)(1). IRA appeals are governed by s u.s.c. § 1221 which states in subpart (a) that \"an employee ... may, with respect to any personnel action taken, or proposed to be taken, against such employee . .. as a result of a prohibited personnel practice described in section 2302(b)(8), seek corrective action from the Merit Systems Protection Board.\" See 5 u.s.c. § 1221(a). In an IRA appeal, \"a petitioner must first establish Board jurisdiction by making non-frivolous allegations that: (1) the petitioner engaged in whistleblowing activity by making a protected disclosure under 5 u.s.c. § 2302(b)(8); and (2) based on the protected disclosure, the agency took or failed to take a personnel action as defined by 5 u.s.c. § 2302(a).\" Willis v. Department of Agric., 141 F.3d 1139, 1142 (Fed.Cir.1998). A petitioner also must establish that \"(3) he sought corrective action from osc; and (4) he exhausted corrective action proceedings before osc.\" Serrao, 95 F.3d at 1569; see also 5 U.S.C. § 1214(a)(3); Willis, 141 F.3d at 1142; King v. Department of Health & Human Servs., 133 F.3d 1450, 1452 (Fed.Cir.1998). The Board did not consider whether it had jurisdiction over Mr. Schmit-thug's IRA appeal. Rather, it simply \"assume{d] for purposes of argument that" }, { "docid": "22092692", "title": "", "text": "violated a DVA policy as that term is used in the agreement. That, in turn, involves whether such a policy existed, for his conduct is admitted. I. The AJ’s decision was based largely on credibility determinations as to the four witnesses providing testimony. The Director of the MICU and a nurse from the MICU asserted that there was a policy against allowing even hospital employees to visit patients without prior permission. Gibson sought to overcome their testimony with his own testimony to the effect that no such policy existed or had ever been applied to employees. An MICU clerk testifying on behalf of Gibson stated that hospital employees generally do not have to obtain prior permission to enter the MICU, but acknowledged that they could be told that they have to wait before visiting someone in the MICU. The AJ gave the testimony of Dr. Bower and the nurse more weight than the testimony of Gibson and the clerk. Credibility determinations such as these are “virtually unreviewable” on appeal to us. Hambsch v. Department of the Treasury, 796 F.2d 430, 436 (Fed.Cir.1986). Nor has Gibson identified anything in the record that would show that the testimony relied on by the AJ was “inherently improbable or discredited by undisputed evidence or physical fact.” Hagmeyer v. Department of Treasury, 757 F.2d 1281, 1284 (Fed.Cir.1985) (quoting Dittmore-Freimuth Corp. v. United States, 182 Ct.Cl. 507, 390 F.2d 664, 685 (Ct.Cl.1968)). Thus, the AJ’s finding that a policy existed that prohibited hospital employees from visiting patients in the MICU without prior permission is supported by substantial evidence. II. Gibson had the burden of establishing jurisdiction before the Board by a preponderance of the evidence. See 5 C.F.R. § 1201.56(a)(2) (1998); Link v. Department of the Treasury, 51 F.3d 1577, 1581 (Fed.Cir.1995). On the merits of the breach of the agreement issue, the AJ found that the “appellant has thé burden of proving, by a preponderance of the evidence, that he did not breach the last-chance agreement.” Gibson v. Department of Veterans Affairs, slip op. at 5 (citing Walters v. Department of Agriculture, 63 M.S.P.R. 348," }, { "docid": "22883306", "title": "", "text": "the agency “would immediately begin to fulfill [its] obligations in accordance with the agreement’s terms.” On or about September 27, 2000, the petitioner filed a pro se petition for review of the administrative judge’s Initial Decision. In that petition, Mr. Tiburzi requested that the settlement agreement be vacated and a new hearing granted, upon the grounds that he entered into the agreement under “duress and extreme coercion” by his counsel and by the administrative judge. During the pendency of Mr. Tiburzi’s petition for review, the agency (on or about October 20, 2000), revised petitioner’s Notice of Termination form (SF-50), to delete any references to the charges brought against petitioner, and to state that he had resigned his position for personal reasons. The revised SF-50, however, provided a resignation date of May 1, 2000, rather than the July 21, 2000, resignation date set forth in the oral settlement agreement. On November 13, 2000, the full Board denied the petition for review, concluding that “there is no new, previously unavailable, evidence and that the administrative judge made no error in law or regulation that affects the outcome” of Mr. Tiburzi’s Board appeal. Tiburzi v. Dep’t of Justice, No. PH-0752-00-0295-1-1, 87 M.S.P.R. 534 (M.S.P.B. Nov.13, 2000) (“Final Decision”). This timely pro se appeal followed. DISCUSSION I This court will affirm a decision of the Board unless we find it to be: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.... ” 5 U.S.C. § 7703(c); Chase-Baker v. Dep’t of Justice, 198 F.3d 843, 845 (Fed.Cir.1999). The petitioner bears the burden of establishing error in the Board’s decision. See, e.g., Cheeseman v. Office of Pers. Mgmt, 791 F.2d 138, 140 (Fed.Cir.1986). II It is “axiomatic that a settlement agreement is a contract.” Greco v. Dep’t of the Army, 852 F.2d 558, 560 (Fed.Cir.1988). And as we have previously recognized, “it is well-established that an oral settlement agreement is binding on the parties, particularly when the terms are memorialized into the" }, { "docid": "11175745", "title": "", "text": "1996, the agency issued Coursen a letter of decision stating that his removal would be effective January 26,1996. After his removal, Coursen filed an appeal to the Board, asserting jurisdiction under the Postal Employees Appeal Rights Act (“PEARA”), 39 U.S.C. § 1005(a)(4). In an initial decision, the administrative judge (“AJ”) dismissed Coursen’s appeal for lack of jurisdiction, concluding that Coursen lacked standing to appeal his removal to the Board because he had failed to show by a preponderance of the evidence that he was employed as a “supervisor or management employee” within the meaning of 39 U.S.C. § 1005(a)(4)(A)(ii). Id. at 1,4. Coursen appealed the AJ’s initial decision to the full Board. The Board denied his petition for review, thus rendering the initial decision final. 5 C.F.R. § 1201.113(b) (2000). Coursen timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (1994). DISCUSSION The scope of our review in an appeal from a decision of the Board is limited. We must affirm the Board’s decision unless it was: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (1994); Gibson v. Dep’t of Veterans Affairs, 160 F.3d 722, 725 (Fed.Cir. 1998). The Board’s jurisdiction is not plenary, but is limited to adverse personnel actions made appealable to it by law, rule, or regulation. 5 U.S.C. § 7701(a) (1994); Middleton v. Dep’t of Def., 185 F.3d 1374, 1379 (Fed.Cir.1999). Whether the Board has jurisdiction to adjudicate a particular appeal is a question of law that we review de novo. Middleton, 185 F.3d at 1379. The burden of establishing jurisdiction is on the petitioner. Herman v. Dep’t of Justice, 193 F.3d 1375, 1378 (Fed. Cir.1999). Coursen argues that the Board erred in dismissing his appeal for lack of jurisdiction. Coursen contends that he was entitled to appeal to the Board because he was ineligible to join a collective bargaining unit (“CBU”) and because he performed the job functions of a managerial" }, { "docid": "22355131", "title": "", "text": "watch room disclosed a substantial and specific danger to public health or safety or disclosed a violation of the SPP Directive, and second, in finding that a reasonable person would not believe that Dr. Herman’s disclosure concerning the photocopying of the telephone log constituted a disclosure of a violation of the EAP Directive. We have jurisdiction under 28 U.S.C. § 1295(a)(9) (1994). DISCUSSION The Board’s jurisdiction is not plenary, but is limited to adverse personnel actions expressly made appealable to it by law, rule, or regulation. See 5 U.S.C. § 7701(a) (1994); Middleton v. Department of Defense, 185 F.3d 1374, 1379 (Fed.Cir.1999). The burden of showing jurisdiction is on the petitioner. See 5 C.F.R. § 1201.56(a)(2)(i) (1999). Whether the Board has jurisdiction to adjudicate a particular appeal is a question of law, which we review de novo. See Middleton, 185 F.3d at 1374, 1379. In order for the Board to have jurisdiction over an IRA appeal under the WPA, one of the things that a petitioner must show, by a preponderance of the evidence, is that he engaged in whistleblower activity by making a disclosure protected under the WPA, i.e., he disclosed information that he reasonably believed evidenced “a violation of law, rule, or regulation,” 5 U.S.C. § 2302(b)(8)(A)(i), or “gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety,” 5 U.S.C. § 2302(b)(8)(A)(ii). Willis v. Department of Agriculture, 141 F.3d 1139, 1142-43 (Fed.Cir.1998). Dr. Herman’s First Disclosure: In the memorandum provided to the associate warden, Dr. Herman noted that the camp does not have a suicide watch room but does have an informal agreement with the Base hospital to utilize its facilities in the event the camp has a suicidal inmate. The memorandum goes on to state that to be “in complete compliance with the suicide watch room requirements,” the camp should have “a formal written agreement with the hospital or look at making a new suicide watch room at the camp.” Dr. Herman contends, on appeal, that a reasonable interpretation of the memorandum was to report" }, { "docid": "167276", "title": "", "text": "appeal discriminatory behavior relating to the termination in this case, but he could challenge future discriminatory behavior occurring after June 2, 2000. In other words, the Government argued that the June 2, 2000 date was intended to show that Kannikal was not waiying his rights to challenge future discrimination, but was permanently waiving his rights to appeal the proposed termination. This argument contradicts the LCSA’s plain language, which states that Kannikal “agrees ... to waive any and all appeal and grievance rights, relating to the underlying charges ... for a period ending June 2, 2000.” (J.A. 22 (emphasis added).) The LCSA specifically states that the June 2, 2000 date applies to appeals “relating to the underlying charges,” not to future discriminatory behavior. The Government’s interpretation contradicts the LCSA’s plain and clear language, and that language is dispositive. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 249 (3d Cir.2007) (“[W]e interpret documents in accord with their plain language.”). The Government also argues that res judicata bars Kannikal from pursuing this appeal. On September 30, 1999, Kannikal appealed his termination to the Merit Systems Protection Board (“MSPB”). . He appealed to the MSPB before June 2, 2000, i.e., during the time period in which the LCSA prohibited him from appealing. The MSPB held that the LCSA barred his appeal. The Court of Appeals for the Federal Circuit upheld this decision, holding that “this court detects no error in the Board’s conclusion that it lacked jurisdiction.” Kannikal v. Dep’t of Justice, 25 Fed.Appx. 874, 877 (Fed.Cir.2001). Res judicata does not bar Kannikal from pursuing the instant action because he filed his EEOC appeal after the LCSA waiver expired and because the MSPB only addressed the LCSA, not the merits of Kan-nikal’s termination claim. In short, the LCSA does not apply after June 2, 2000. Kannikal filed his EEOC charge on April 20, 2001. Neither the LCSA nor the Federal Circuit decision bars this suit. V. Conclusion Section 2401(a) does not apply to Title VII actions. Kannikal was terminated in 1999 and has sought relief for over a decade. While we" }, { "docid": "22386807", "title": "", "text": "Dr. Yunus, unlike Mr. Clardy, was a physician and supervisor in a position of trust and responsibility. See Carr v. Social Sec. Admin., 185 F.3d 1318, 1327 (Fed.Cir.1999). Based on the Board’s findings, which we hold are supported by substantial evidence, we sustain the Board’s conclusion that the DVA did not violate the WPA when it removed Dr. Yunus from his position in the Veterans Health Administration. AFFIRMED. . We recognize that the Board has taken a different approach to this jurisdictional issue from the one recited in the text. Under the Board’s approach, an IRA appellant must prove the \"disclosure,” \"exhaustion” and \"personnel action” elements by a preponderance of the evidence before the Board will conclude that it has jurisdiction. See Anderson v. Small Bus. Admin., 78 M.S.P.R. 518, 520 n. * (1998); Geyer v. Dep't of Justice, 63 M.S.P.R. 13, 16-17 (1994). Some of this court’s cases have echoed the Board’s approach, although without noting that the Board’s approach conflicts with the rule adopted in Spruill and the other cases cited in the text. See Herman v. Dep't of Justice, 193 F.3d 1375, 1378 (Fed.Cir.1999); King v. Dep’t of Health & Human Servs., 133 F.3d 1450, 1452 (Fed.Cir.1998); Serrao v. Merit Sys. Prot. Bd., 95 F.3d 1569, 1574 (Fed.Cir.1996). To the extent that the characterization in those cases of the test for Board jurisdiction over IRA appeals conflicts with the test set forth in Spruill (and reaffirmed in the later cases cited in the text), we follow the authority of the earlier decision in Spruill, as this court’s precedent requires us to do. See Newell Cos. v. Kenney Mfg. Co., 864 F.2d 757, 765 (Fed.Cir.1988) (\"Where there is a direct conflict [between decisions of this court], the prece-dential decision is the first.”)." }, { "docid": "22447231", "title": "", "text": "alleged wrongdoer himself, but opined that those cases were wrongly decided because the WPA protects reports of wrongdoing to the alleged wrongdoer. Id. at 571-74 (Slavet, then-Vice Chair, concurring). Moreover, then-Vice Chair Slavet urged that nothing in the legislative history of the WPA indicated that Congress intended to require an employee to go over his supervisor’s head or outside his organization for the disclosure to be protected. Id. at 576-77. She noted that she would affirm on the ground that petitioner’s alleged disclosures did not disclose gross mismanagement or violation of law, rule, or regulation, but were mere disagreements with his supervisor’s decisions. Id. at 578-80. The timely petition for review to this court followed. DISCUSSION I Decisions of the Board must be sustained unless they are arbitrary, capricious, an abuse of discretion, not in accordance with law, obtained without procedures required by rule, law, or regulation, or unsupported by substantial evidence. 5 U.S.C. § 7703(c); Hayes v. Dep’t of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984). To maintain an IRA under the IA/PA, a petitioner must establish Board jurisdiction by exhausting administrative remedies before the OSC and making non-frivolous allegations that \"(1) he engaged in whistleblowing activity by making a protected disclosure under 5 U.s.c. § 2302(b)(8), and (2) the disclosure was a contributing factor in the agency's decision to take or fail to take a personnel action as defined by 5 u.s.c. § 2302(a).\" Yunus v. Dep't of Veterans Affairs, 242 F.3d 1367, 1371 (Fed.cir.2001). In the absence of a protected disclosure, the Board is without jurisdiction to entertain an IRA appeal under the WPA. Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1034 (Fed.Cir.1993). Whether the Board possessed jurisdiction is a question of law which we review without deference. Herman v. Dep't of Justice, 193 F.3d 1375, 1378 (Fed.cir.1999). II This case presents important questions under the IA/PA. The issue is whether the Board erred in dismissing petitioner's appeal on the ground that his reports were not protected disclosures pursuant to 5 u.s.c. § 2302(b)(8), as required for Board jurisdiction under 5 u.s.c. § 1221(a). At" }, { "docid": "22083173", "title": "", "text": "also tape-recorded a portion of the telephone conference and attached the tape and a written transcript to the initial decision. The initial decision of the administrative judge became the final decision of the Board on January 4, 2000, when Mr. Sargent failed to file a petition for review to the full Board. Mr. Sargent then petitioned for review to this court. DISCUSSION We have jurisdiction over this petition for review pursuant to 28 U.S.C. § 1295(a)(9). Although this case was not appealed to the full Board, the initial decision of the administrative judge became the Board’s final decision when the petitioner failed to file for review at the full board. 5 C.F.R. § 1201.113; 5 U.S.C. § 7703(a)(1); see also James v. Fed. Energy Regulatory Comm’n, 747 F.2d 1581, 1583 (Fed.Cir.1984). Generally, this court may reverse a decision of the Board only if it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, or regulation having been followed; or (3)unsupported by substantial evidence. 5 U.S.C. § 7703(c). In this petition for review, petitioner alleges that he never agreed to the terms of the November 30, 1999, settlement agreement. First, he asserts that he never signed an agreement. However, it is well-established than an oral settlement agreement is binding on the parties, particularly when the terms are memorialized into the record. See Goodwin v. Dep’t of Treasury, 983 F.2d 226, 228 (Fed.Cir.1992) (holding that oral agreement between employee and agency was binding); see also Boucher v. Dep’t of Treasury, 68 M.S.P.R. 40, 43 (1995); Westfall v. United States Postal Serv., 64 M.S.P.R. 90, 93 (1994). Our case is unlike Mahboob v. Dep’t of Navy, 928 F.2d 1126, 1128-30 (Fed.Cir.1991), where this Court found that an oral settlement was not binding until it was reduced to writing, because the parties in Mahboob clearly did not intend to be bound until a written contract was signed. Petitioner also alleges that he was coerced and intimidated into orally agreeing to the settlement. He claims that the full transcript would support this" }, { "docid": "22033526", "title": "", "text": "have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). DISCUSSION Our scope of review in an appeal from a decision of the Board is limited. We must affirm the Board’s decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed.Cir.1998). Whether the Board has jurisdiction to adjudicate an appeal is a question of law that we review de novo. Herman v. Dep’t of Justice, 193 F.3d 1375, 1378 (Fed.Cir.1999). As petitioner, Campion has the burden of establishing the Board’s jurisdiction by preponderant evidence. See Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885, 886 (Fed.Cir.1998); 5 C.F.R. § 1201.56(a)(2)(i) (2003). On appeal, Campion argues that the Board erred in dismissing his appeal for lack of jurisdiction. Campion contends that the AJ misconstrued the VEOA, arguing that the VEOA treats veterans who are “preference eligibles” and “veterans who have been separated from the armed forces under honorable conditions after 3 years or more of active service” as having equal access to merit promotion jobs. According to Campion, it follows that both groups must have the same rights of redress under the VEOA, including the right to appeal to the Board. Campion further asserts that the AJ incorrectly stated that the letter from the Department of Labor indicated that Campion was not a preference-eligible veteran, when in fact that letter affirmed his right to appeal to the Board. In addition, Campion contends that the AJ improperly refused to grant him a hearing. The government responds that the AJ correctly interpreted the VEOA in determining that its provisions confer on Cam-pion no right to appeal to the Board. The government argues that the plain language of § 3330a and its legislative history confirm that the VEOA provides a right of appeal only for preference-eligible veterans. Even if the VEOA were read to provide a right of appeal to non-preference-eligible" }, { "docid": "1826989", "title": "", "text": "the [MSPB] is limited.” Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed.Cir.2003). We may only set aside decisions by the MSPB that are “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c); see also Briggs, 331 F.3d at 1311. The petitioner has the burden of establishing error in the MSPB’s decision. Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467 (Fed.Cir.1998). When parties enter into a settlement agreement that fully resolves their dispute, there is no case or controversy remaining over which the MSPB or this court have jurisdiction. Asberry v. U.S. Postal Serv., 692 F.2d 1378, 1380 (Fed.Cir.1982). If a settlement agreement is “ ‘tainted with invalidity, either by fraud ... or by a mutual mistake under which both parties acted,’ ” however, this court may set aside the MSPB’s decision not to vacate the agreement. Id. (quoting Callen v. Pennsylvania R.R. Co., 332 U.S. 625, 630, 68 S.Ct. 296, 92 L.Ed. 242 (1948)). To prove that a settlement agreement is invalid because it was entered under duress, a petitioner must show that “(1) [he] involuntarily accepted [the settlement agreement’s] terms, (2) circumstances permitted no other alternative, and (3) such circumstances were the result of ... coercive acts.” Dureiko v. United States, 209 F.3d 1345, 1358 (Fed.Cir.2000). A party attacking the validity of a settlement agreement “bear[s] a properly heavy burden.” Asberry, 692 F.2d at 1380. Analysis On appeal, Kent contends that he was coerced into signing the Settlement Agreement. Kent asserts that he attended a hearing before an MSPB administrative judge on January 10, 2012, where the administrative judge encouraged him to engage in settlement discussions with the Air Force. Kent was not represented by counsel at the hearing or during the settlement discussions that took place that day. According to Kent, the Air Force, through the administrative judge, indicated that it would withdraw its offer to settle if Kent did not accept it on January" } ]

[ { "docid": "22352602", "title": "", "text": "threefold damages for the injury to his business or property. Of course, neither the statutory language nor the legislative history of §4 offers any focused guidance on the question of which injuries are too remote from the violation and the purposes of the antitrust laws to form the predicate for a suit under §4; indeed, the unrestrictive language of the section, and the avowed breadth of the congressional purpose, cautions us not to cabin § 4 in ways that will defeat its broad remedial objective. But the potency of the remedy implies the need for some care in its application. In the absence of direct guidance from Congress, and faced with the claim that a particular injury is too remote from the alleged violation to warrant § 4 standing, the courts are thus forced to resort to an analysis no less elusive than that employed traditionally by courts at common law with respect to the matter of “proximate cause.” See Perkins v. Standard Oil Co., 395 U. S. 642, 649 (1969); Karseal Corp. v. Richfield Oil Corp., 221 F. 2d 358, 363 (CA9 1955). In applying that elusive concept to this statutory action, we look (1) to the physical and economic nexus between the alleged violation and the harm to the plaintiff, and (2), more particularly, to the relationship of the injury alleged with those forms of injury about which Congress was likely to have been concerned in making defendant’s conduct unlawful and in providing a private remedy under §4. (1) It is petitioners’ position that McCready’s injury is too “fortuitous” and too “incidental” to and “remote” from the alleged violation to provide the basis for a §4 action. At the outset, petitioners argue that because the alleged conspiracy was directed by its protagonists at psychologists, and not at subscribers to group health plans, only psychologists might maintain suit. This argument may be quickly disposed of. We do not think that because the goal of the conspirators was to halt encroachment by psychologists into a market that physicians and psychiatrists sought to preserve for themselves, McCready’s injury is rendered “remote.”" } ]

[ { "docid": "18729634", "title": "", "text": "“the purpose of purchasing said assets and for paying such an excessive sum of money was to eliminate all major competition to the Plain Dealer’s business in the Greater Cleveland area and to terminate the Job Security Agreement.” In Southaven Land Co. v. Malone & Hyde, Inc., 715 F.2d 1079 (6th Cir.1983), this circuit reviewed the relevant Supreme Court authority, and expressly identified the following factors which must be considered in deciding whether a private party has standing to sue under Section 4: (1) the causal connection between the antitrust violation and the harm to the plaintiff and whether that harm was intended to be caused; (2) the nature of the plaintiffs alleged injury including the status of the plaintiff as consumer or competitor in the relevant market; (3) the directness or indirectness of the injury, and the related inquiry of whether the damages are speculative; (4) the potential for duplicative recovery or complex apportionment of damages; and (5) the existence of more direct victims of the alleged antitrust violation. Id. at 1085. No single factor is dispositive of the issue; rather, all factors must'be carefully balanced. We now review seriatim the five-pronged test of Southaven against the factual backdrop of this case. A. The Intent to Cause Harm and the Causal Connection Between The Antitrust Violation and the Harm to Plaintiffs Although plaintiffs allege that one purpose of the conspiracy between the Press and the Plain Dealer was to terminate the Agreement, they have failed to present any evidence to substantiate this allegation. The only accounts of the negotiations leading up to the purchase of the Press subscription list indicate that neither the Cleveland Typographical Union nor the Agreement were ever mentioned or considered. In fact, Mr. Newhouse, who conducted negotiations on behalf of the Plain Dealer, claims that he did not even have knowledge of the Agreement at that time. Therefore, judging solely from the negotiations, the requisite intent to cause harm was not present. Plaintiffs argue, however, that the intent is circumstantially evident from previous “conspiratorial attack[s]” upon the Agreement by the publishers. Plaintiffs reference the supplements" }, { "docid": "18729642", "title": "", "text": "for Duplicative Recovery or Complex Apportionment of Damages Where the court finds that plaintiffs have only suffered an indirect injury as a result of the alleged antitrust violations, the danger of duplicative recovery is highly relevant. Meyer Goldberg, Inc. v. Goldberg, 717 F.2d 290, 294 (6th Cir.1983). For if the court were to allow all indirect victims standing to sue and potentially be awarded treble damages, the dangers of duplicative recovery and complex apportionment of damages would become very real. As this court noted in Southaven, “[particularly, indirect injuries may render damages highly speculative or create situations of complexity that would foreclose an equitable determination and apportionment of damages.” Southaven, 715 F.2d at 1087. Here, plaintiffs have suffered, at best, an indirect injury, and therefore the examination of this part of the Southaven analysis also weighs against a finding that plaintiffs have standing to sue. E. The Existence of More Direct Victims The court must finally consider whether there are more direct victims of the alleged antitrust violation who, motivated by the prospect of treble damages, might seek “to vindicate the public interest in antitrust enforcement.” Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 542, 103 S.Ct. 897, 910, 74 L.Ed.2d 723 (1983). The purpose of this inquiry is basically to ensure that a significant antitrust violation will not go undetected or unremedied. Id. In this case, consumers, participants, and competitors in the relevant market would all be more direct victims. Each of these parties would be directly injured by a lessening of competition in the daily newspaper market. Plaintiffs argue, however, that none of these parties will be able to vindicate the public interest in this case. Plaintiffs point out that the Press was the only major competitor of the Plain Dealer, and thus, since the Press closed, there are no longer any direct competitors who are able to sue. In addition, plaintiffs note that in class actions that were brought on behalf of advertisers and subscribers with respect to this incident, the district court refused to certify the classes. Thus, plaintiffs" }, { "docid": "11580449", "title": "", "text": "is not enough, however, that plaintiffs can show that defendants’ conduct caused them injury. Associated Gen. Contractors, 459 U.S. at 535 n. 31, 103 S.Ct. at 907 n. 31. Plaintiffs also must show that their injuries were sufficiently direct and that they would be efficient enforcers of the antitrust laws. See id. “[I]t [is] virtually impossible to announce a black letter rule that will dictate the result in every case” to determine this second requirement. Id. at 536, 103 S.Ct. at 908. Nevertheless, the following factors have been identified for examining whether a plaintiff has antitrust standing: 1. the causal connection between the antitrust violation and harm to the plaintiff and whether that harm was intended to be caused; 2. the nature of the plaintiffs alleged injury including the status of the plaintiff as consumer or competitor in the relevant market; 3. the directness or indirectness of the injury, and the related inquiry of whether the damages are speculative; 4. the potential for duplicative recovery or complex apportionment of damages; and 5. the existence of more direct victims of the alleged antitrust violation. Southaven Land Co. v. Malone & Hyde, Inc., 715 F.2d 1079, 1085 (6th Cir.1983) (citing Associated Contractors, 459 U.S. at 537-44, 103 S.Ct. at 908-12). Hence, to have antitrust standing, a plaintiff must show: (1) antitrust injury, and (2) under the factors set forth above, that the directness of the injury was such that he would be an efficient enforcer of the antitrust laws. Defendants cite several cases in which courts have held that health care professionals lacked standing to assert antitrust claims. See Balaklaw v. Lovell, 14 F.3d 793 (2nd Cir.1994) (affirming district court’s summary judgment, holding that anesthesiologist lacked antitrust standing to challenge exclusive contract awarded to competing group of anesthesiologists); Oksanen v. Page Memorial Hosp., 945 F.2d 696 (4th Cir.1991) (affirming district court’s summary judgment, holding that physician whose privileges were revoked did not establish antitrust injury); Levine v. Central Fla. Med. Affiliates, Inc., 864 F.Supp. 1175 (M.D.Fla.1994) (granting summary judgment, holding that internist lacked standing to assert antitrust claims challenging denial of staff" }, { "docid": "2930339", "title": "", "text": "S.Ct. 897, 74 L.Ed.2d 723 (1983). Those factors include: (1) the causal connection between the antitrust violation and harm to the plaintiff and whether that harm was intended to be caused; (2) the nature of the plaintiffs alleged injury including the status of the plaintiff as consumer or competitor in the relevant market; (3) the directness or indirectness of the injury, and the related inquiry of whether the damages are speculative; (4) the potential for duplicative recovery or complex apportionment of damages; and (5) the existence of more direct victims of the alleged antitrust violation. Southaven Land Co., Inc. v. Malone & Hyde, Inc., 715 F.2d 1079, 1085 (6th Cir.1983). All five factors must be balanced, however, with no one factor being determinative. See Peck v. General Motors Corp., 894 F.2d 844, 846 (6th Cir.1990). Furthermore, as noted by this court in Valley Products, “[t]he Sixth Circuit, it is fair to say, has been reasonably aggressive in using the antitrust injury doctrine to bar recovery where the asserted injury, although linked to an alleged violation of antitrust laws, flows directly from conduct that is not itself an antitrust violation.” Id. at 403. In this case, an examination of the antitrust standing factors leads to the inescapable conclusion that the district court appropriately dismissed Indeck’s cause of action against the defendants. Significantly, the only harm allegedly suffered by Indeck was in the company’s capacity as a competitor in the marketplace, not as a defender of marketplace competition. Although antitrust actions may, of course, be initiated by marketplace competitors, those actors in the economic forum must at least allege that exclusion of the competitor from the marketplace results in the elimination of a superior product or a lower-cost alternative. The record in this appeal presents no indication that competition itself was harmed by any act of the defendants. Consequently, the antitrust damages alleged by Indeck are too indirect and speculative to justify assertion of federal antitrust jurisdiction over this matter. A. Consumers Energy’s Contract With General Motors-Saginaw Plant Indeck asserts that Consumers Energy violated antitrust laws by negotiating a power agreement with" }, { "docid": "12305415", "title": "", "text": "McCready, 457 U.S. 465, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982). McCready discussed two types of limitation. The first was designed to deny standing to an antitrust plaintiff in situations which presented “the risk of duplicative recovery engendered by allowing every person along a chain of distribution to claim damages arising from a single transaction that violated the antitrust law.” 457 U.S. at 474-75, 102 S.Ct. at 2545-46. The second would deny standing to plaintiffs whose injuries were too remote from the alleged antitrust violation. In applying the “remoteness” limitation, which the Court likened in its elusiveness to the common law concept of “proximate cause,” courts must look (1) to the physical and economic nexus between the alleged violation and the harm to the plaintiff, and (2), more particularly, to the relationship of the injury alleged with those forms of injury about which Congress was likely to have been concerned in making defendant’s conduct unlawful and in providing a private remedy under § 4. Id. at 478, 102 S.Ct. at 2547. In General Contractors the Supreme Court focused on a number of factors— some overlapping with the limitations discussed in McCready — to be analyzed in deciding the standing issue. These included: (1) a causal connection between the alleged antitrust violation and the harm to the plaintiff, and the defendant’s intention to cause that harm; (2) the relationship of the injury to the statute’s goal of protecting the economic freedom of participants in the market — specifically, whether plaintiff was a consumer or competitor in the relevant market; (3) the directness of the injury; (4) whether there exists an identifiable class of persons apart from the plaintiff whose self-interest would normally motivate them to vindicate the public interest in antitrust enforcement; (5) the speculative nature of the damage claim; and (6) the potential difficulties in computing damages posed by the need to avoid duplicative recovery or complex apportionment among injured parties. 459 U.S. at 535-45, 103 S.Ct. at 907-12. See also Crimpers Promotions Inc. v. Home Box Office, Inc., 724 F.2d 290 (2d Cir.1983) (applying McCready and General Contractors standing" }, { "docid": "21576816", "title": "", "text": "antitrust standing issues in Province v. Cleveland Press Publishing Co., 787 F.2d 1047 (6th Cir.1986) and Southaven Land Co. v. Malone & Hyde, Inc., 715 F.2d 1079 (6th Cir.1983). These cases elaborated a five-part test, which considers: (1) the causal connection between the antitrust violation and the harm to the plaintiff and whether that harm was intended to be caused; (2) the nature of the plaintiff’s alleged injury including the status of the plaintiff as consumer or competitor in the relevant market; (3) the directness or indirectness of the injury, and the related inquiry of whether the damages are speculative; (4) the potential for duplicative recovery or complex apportionment of damages; and (5) the existence of more direct victims of the alleged antitrust violation. Province, 787 F.2d at 1050-51. Standing turns on a balancing of these factors; “[n]o single factor is dispositive.” Id. at 1051. We will now consider each of these factors in light of the record in this case. Causal Connection and Intent to Cause Harm. In the present case, the causal nexus is attenuated. Appellant alleges that Pendle-ton’s plan to eliminate discount sales injured him by reducing his commissions. This injury is derivative; it is simply a side effect of Pendleton’s alleged antitrust vio lations. Nor has appellant made any showing that Pendleton’s alleged keystone pricing plan was intended to harm him. The scheme apparently was aimed at disciplining retailers and raising consumer prices, not reducing the commissions earned by salespersons. Any injury to appellant was merely incidental to the purposes of the alleged price-fixing arrangement. Status as a Consumer or Competitor in the Market. Fallís was neither a competitor nor a consumer in the relevant market. However, he does claim that he was “manipulated by [Pendleton] to cause antitrust violations” and “terminated for refusing to participate in the illegal scheme.” Province held that “a finding that plaintiffs were not direct participants in the relevant market does not automatically preclude standing.” 787 F.2d at 1052. A plaintiff can also satisfy the “status in the market” prong if his injury is “inextricably intertwined” with the antitrust violation. Id." }, { "docid": "5788543", "title": "", "text": "and that no genuine issue of material fact existed to support Plaintiffs’ arguments that the Committee’s Decision should be vacated. The court accordingly granted Defendants’ motions for summary judgment. Plaintiffs moved the court to reconsider, which was denied, and this timely appeal ensued. II. The Antitrust Count We first address Plaintiffs’ contention that the district court erroneously granted the motion to dismiss their antitrust claim against Fleet and FCDS. Although the precise theory of the antitrust claim is not clear, we assume for the purposes of discussion that Fleet’s conduct might have violated the antitrust laws if Fleet somehow parlayed the alleged contract breach into a mechanism to destroy competition in the new vehicle haulaway market. Cf. Associated General Contractors, Inc. v. California State Council of Carpenters, 459 U.S. 519, 528 & n. 17, 103 S.Ct. 897, 903 & n. 17, 74 L.Ed.2d 723 (1983). Even given this dubious assumption, however, we agree with the district court that Plaintiffs do not have standing under the antitrust laws to challenge the violation. In determining whether any particular plaintiff has the requisite “antitrust standing,” this court has interpreted the relevant Supreme Court opinions to mandate inquiry into the following factors: (1) the causal connection between the antitrust violation and the harm to the plaintiff and whether that harm was intended to be caused; (2) the nature of the plaintiff’s alleged injury including the status of the plaintiff as consumer or competitor in the relevant market; (3) the directness or indirectness of the injury, and the related inquiry of whether the damages are speculative; (4) the potential for duplicative recovery or complex apportionment of damages; and (5) the existence of more direct victims of the alleged antitrust violation. Fallis v. Pendleton Woolen Mills, Inc., 866 F.2d 209, 210 (6th Cir.1989); Province v. Cleveland Press Publishing Co., 787 F.2d 1047, 1050-51 (6th Cir.1986); Meyer Goldberg, Inc. v. Goldberg, 717 F.2d 290, 293-94 (6th Cir.1983); Southaven Land Co. v. Malone & Hyde, Inc., 715 F.2d 1079, 1085 (6th Cir.1983); see Associated General Contractors, 459 U.S. at 538-46, 103 S.Ct. at 908-13; Blue Shield of Virginia" }, { "docid": "3006277", "title": "", "text": "Court- has instructed, “The antitrust injury requirement ensures that a plaintiff can recover only if the loss stems from a competition-reducing aspect or effect of the defendant’s behavior.” Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 344, 110 S.Ct. 1884, 109 L.Ed.2d 333 (1990). Lane cannot satisfy the first prong of the antitrust injury test, because “there is no well-pleaded allegation that [Ford’s] ... conduct injured the competitive structure of the market.” Naso v. Park, 850 F.Supp. 264, 271 (S.D.N.Y.1994). ■ Having pointed out this fatal defect, the Court recognizes that in the context of a private antitrust action, “the court should assume the existence of a violation and then ask whether the standing elements are shown.” AREEDA & HOVENKAMP, ANTITRUST LAW, ¶ 360f. B. Antitrust Standing Even assuming Lane could establish . antitrust injury, such injury is ' not sufficient to confer standing upon him. Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104, 110, n. 5, 107 S.Ct. 484, 93 L.Ed.2d 427 (1986); Axis S.p.A. v. Micafil, Inc., 870 F.2d 1105, 1111 (6th Cir.)(even where antitrust injury is shown, standing may be denied'based on an analysis of other factors), cert. denied, 493 U.S. 823, 110 S.Ct. 83, 107 L.Ed.2d 49 (1989). A plaintiff must also meet other antitrust standing requirements. The standing issue turns on an analysis of the following factors, first enunciated by the Supreme Court in Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 728 (1983), and recognized by the Sixth Circuit in Southaven Land Co., Inc. v. Malone & Hyde, Inc., 715 F.2d 1079 (6th Cir.1983): (1) the causal connection between the antitrust violation and harm to the plaintiff and whether that harm was intended to be caused; (2) the nature of the plaintiffs alleged injury including the status of the plaintiff as consumer or competitor in the relevant market; (3) the directness or indirectness of the injury, and the related inquiry of whether the damages are speculative; (4) the potential for duplicative recovery or complex apportionment of damages; and," }, { "docid": "3006278", "title": "", "text": "1105, 1111 (6th Cir.)(even where antitrust injury is shown, standing may be denied'based on an analysis of other factors), cert. denied, 493 U.S. 823, 110 S.Ct. 83, 107 L.Ed.2d 49 (1989). A plaintiff must also meet other antitrust standing requirements. The standing issue turns on an analysis of the following factors, first enunciated by the Supreme Court in Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 728 (1983), and recognized by the Sixth Circuit in Southaven Land Co., Inc. v. Malone & Hyde, Inc., 715 F.2d 1079 (6th Cir.1983): (1) the causal connection between the antitrust violation and harm to the plaintiff and whether that harm was intended to be caused; (2) the nature of the plaintiffs alleged injury including the status of the plaintiff as consumer or competitor in the relevant market; (3) the directness or indirectness of the injury, and the related inquiry of whether the damages are speculative; (4) the potential for duplicative recovery or complex apportionment of damages; and, (5) the existence of more direct victims of the alleged antitrust violation. Southaven, 715 F.2d at 1085; see also Re/Max Int’l Inc., et. al. v. Realty One, Inc., 173 F.3d 995, 1022 (6th Cir.1999); Bodie-Rickett and Assocs. v. Mars, Incorp., 957 F.2d 287, 290 (6th Cir.1992). No single factor is outcome determinative. Province v. Cleveland Publishing Co., 787 F.2d 1047, 1051 (6th Cir.1986). The Court will address the factors logically, rather than chronologically. 1. Directness of the Injury and Speculative Nature of Damages; the Potential for Duplicative Recovery or Complex Apportionment of Damages; and the Existence of More Direct Victims of the Alleged Antitrust Violation These three factors will be dealt with together because they are closely related. Bodie-Rickett and Assocs. v. Mars Inc., 957 F.2d 287, 292 (6th Cir.1992). The seminal case of Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977), established the “indirect purchaser doctrine.” The gravamen of the doctrine is that those who do not purchase directly from the alleged antitrust violator lack standing to" }, { "docid": "22067812", "title": "", "text": "the discretion of the courts of appeals, to be exercised on the facts of individual cases.” Id. We have carefully considered the case law of our circuit and elsewhere involving the exercise of this limited area of discretion and conclude that to the extent the issue is presented with sufficient clarity and completeness and its resolution will materially advance the progress of this already protracted litigation, we should address it. Alexander v. Aero Lodge No. 735, 565 F.2d 1364, 1370-71 (6th Cir.1977). We realize that the importance of our discussion of this issue has been largely subsumed by our rulings on the Keogh and Reed-Bulwinkle issues. A. General Principles of Antitrust Standing In Associated General Contractors of Cal., Inc. v. California State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) (hereinafter AGC), the Supreme Court took a fresh look at antitrust standing. See Southaven Land Co., Inc. v. Malone & Hyde, Inc., 715 F.2d 1079, 1085 (6th Cir.1983) (AGC was “an obvious attempt to implement uniformity among che circuits”). AGC did not repudiate the Supreme Court’s previous antitrust standing cases, but rather tried to synthesize them. Our court has summarized the AGC factors: (1) the causal connection between the antitrust violation and the harm to the plaintiff and whether that harm was intended to be caused; (2) the nature of the plaintiff's alleged injury including the status of the plaintiff as consumer or competitor in the relevant market; (3) the directness or indirectness of the injury, and the related inquiry of whether the damages are speculative; (4) the potential for duplicative recovery or complex apportionment of damages; and (5) the existence of more direct victims of the alleged antitrust violation. Province v. Cleveland Press Publishing Co., 787 F.2d 1047, 1050-51 (6th Cir.1986) (quoting Southaven Land Co., 715 F.2d at 1085). Southaven said this list of factors is not exhaustive. See Southaven Land Co., 715 F.2d at 1085 n. 6. This reading of AGC seems correct. See 459 U.S. at 538, 103 S.Ct. at 908. AGC’s attempt to synthesize precedents reflected the Court's view that the" }, { "docid": "6117577", "title": "", "text": "L.Ed.2d 149 (1982). But “the mere fact that the claim is literally encompassed by the Clayton Act does not end the inquiry.” Associated General Contractors of California v. California State Council of Carpen ters, —U.S. —, —, 103 S.Ct. 897, 908, 74 L.Ed.2d 723 (1983). Since Hawaii v. Standard Oil Co., 405 U.S. 251, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972), the Court has drawn on statutory policy to restrict standing under § 4. In Associated General Contractors, it conceded that no simple standing rule can be formulated, and enunciated a multi-factor approach for lower courts to follow on a case-by-case basis. 103 S.Ct. at 908 n. 33. Those factors include (1) the causal connection between the antitrust violation and harm to the plaintiff and whether that harm was intended to be caused; (2) the nature of the plaintiff as consumer or competitor in the relevant market; (3) the directness or indirectness of the injury, and the related inquiry of whether the damages are speculative; (4) the potential for duplicative recovery or complex apportionment of damages; and (5) the existence of more direct victims of the alleged antitrust violation. 103 S.Ct. at 908-13. The Sixth Circuit has adopted this test. See Southaven Land Co. v. Malone & Hyde, Inc., 715 F.2d 1079, 1084, (6th Cir.1983). McCready indicates that questions of antitrust injury and directness should dominate the court’s analysis: ... [W]e [must] look (1) to the physical and economic nexus between the alleged violation and the harm to the plaintiff, and, (2) more particularly, to the relationship of the injury alleged with those forms of injury about which Congress was likely to have been concerned in making defendant’s conduct unlawful and in providing a private remedy under § 4. 102 S.Ct. at 2548. A. Causation and Intent As noted earlier, Counts IV and V of this action allege that The Plain Dealer, Press Publishing, and Cole entered into an antitrust conspiracy that had two distinct goals: (1) creating a monopoly for The Plain Dealer in the Greater Cleveland daily and Sunday newspaper market, and (2) terminating Press Publishing’s contractual obligation" }, { "docid": "6117578", "title": "", "text": "damages; and (5) the existence of more direct victims of the alleged antitrust violation. 103 S.Ct. at 908-13. The Sixth Circuit has adopted this test. See Southaven Land Co. v. Malone & Hyde, Inc., 715 F.2d 1079, 1084, (6th Cir.1983). McCready indicates that questions of antitrust injury and directness should dominate the court’s analysis: ... [W]e [must] look (1) to the physical and economic nexus between the alleged violation and the harm to the plaintiff, and, (2) more particularly, to the relationship of the injury alleged with those forms of injury about which Congress was likely to have been concerned in making defendant’s conduct unlawful and in providing a private remedy under § 4. 102 S.Ct. at 2548. A. Causation and Intent As noted earlier, Counts IV and V of this action allege that The Plain Dealer, Press Publishing, and Cole entered into an antitrust conspiracy that had two distinct goals: (1) creating a monopoly for The Plain Dealer in the Greater Cleveland daily and Sunday newspaper market, and (2) terminating Press Publishing’s contractual obligation to provide lifetime employment and benefits to the Press employees under the job security agreement. The second prong of the alleged conspiracy defines the employees as intended victims of the conspiracy and satisfactorily posits a causal connection between the monopolization and the employees’ injuries. B. Antitrust Injury Plaintiffs only have antitrust standing if their “injury was of a type that Congress sought to redress in providing a private remedy for violations of antitrust laws.” Blue Shield of Virginia v. McCready, supra, 102 S.Ct. at 2550; Associated General Contractors, supra, 103 S.Ct. at 909. The concept of “antitrust injury” originated with Brunswick v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1976). The Court rejected an antitrust action brought by the owners of three independent bowling centers, who alleged that Brunswick violated § 7 of the Clayton Act when it purchased and operated financially failing bowling lanes in competition with them. The Court turned down their claim for damages based on lost profits, and refused to “authorize damages for losses which are" }, { "docid": "18729633", "title": "", "text": "4, the Supreme Court has recognized that “the judicial remedy cannot encompass every conceivable harm that can be traced to the alleged wrongdoing.” Associated General Contractors of California v. California State Council of Carpenters, 459 U.S. 519, 537 103 S.Ct. 897, 908, 74 L.Ed.2d 723 (1983); accord Southaven Land Co. v. Malone & Hyde, Inc., 715 F.2d 1079 (6th Cir. 1983) (“[Application of § 4 has of necessity been judicially confined to limit the remedy available thereunder to particular classes of persons and for redress of particular forms of injury.”). In the Province action, plaintiffs specifically allege antitrust violations as a result of the Plain Dealer’s purchase of the subscription list from the Press at a price well in excess of its true value. Paragraph 20 of the Complaint states that the defendants “conspired together for the purpose and with the intent of creating a monopoly in the product market of daily and Sunday newspapers for the Greater Cleveland area, and for the purpose of terminating the Job Security Agreement.” Paragraph 21 further states that “the purpose of purchasing said assets and for paying such an excessive sum of money was to eliminate all major competition to the Plain Dealer’s business in the Greater Cleveland area and to terminate the Job Security Agreement.” In Southaven Land Co. v. Malone & Hyde, Inc., 715 F.2d 1079 (6th Cir.1983), this circuit reviewed the relevant Supreme Court authority, and expressly identified the following factors which must be considered in deciding whether a private party has standing to sue under Section 4: (1) the causal connection between the antitrust violation and the harm to the plaintiff and whether that harm was intended to be caused; (2) the nature of the plaintiffs alleged injury including the status of the plaintiff as consumer or competitor in the relevant market; (3) the directness or indirectness of the injury, and the related inquiry of whether the damages are speculative; (4) the potential for duplicative recovery or complex apportionment of damages; and (5) the existence of more direct victims of the alleged antitrust violation. Id. at 1085. No single" }, { "docid": "2930338", "title": "", "text": "97 S.Ct. 690 (quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962)). By emphasizing the importance of establishing “antitrust injury,” courts ensure “that antitrust litigants use the laws to prevent anti-competitive action and make[] certain that they will not be able to recover under the antitrust laws when the action challenged would tend to promote competition in the economic sense.” Hy-Point Technology, Inc. v. Hewlett-Packard Co., 949 F.2d 874, 877 (6th Cir.1991). Otherwise, “routine disputes between business competitors would be elevated to the status of an antitrust action, thereby trivializing the Act because of its too ready availability.” Capital Imaging Assocs., P.C. v. Mohawk Valley Med. Assocs., Inc., 996 F.2d 537, 543 (2d Cir.1993). To assist courts in fulfilling their responsibilities of ensuring that antitrust laws are not “trivialized,” the Supreme Court has articulated certain factors to be analyzed in determining whether a plaintiff has established antitrust standing. See Associated Gen. Contractors of Cal., Inc. v. California State Council of Carpenters, 459 U.S. 519, 537-45, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). Those factors include: (1) the causal connection between the antitrust violation and harm to the plaintiff and whether that harm was intended to be caused; (2) the nature of the plaintiffs alleged injury including the status of the plaintiff as consumer or competitor in the relevant market; (3) the directness or indirectness of the injury, and the related inquiry of whether the damages are speculative; (4) the potential for duplicative recovery or complex apportionment of damages; and (5) the existence of more direct victims of the alleged antitrust violation. Southaven Land Co., Inc. v. Malone & Hyde, Inc., 715 F.2d 1079, 1085 (6th Cir.1983). All five factors must be balanced, however, with no one factor being determinative. See Peck v. General Motors Corp., 894 F.2d 844, 846 (6th Cir.1990). Furthermore, as noted by this court in Valley Products, “[t]he Sixth Circuit, it is fair to say, has been reasonably aggressive in using the antitrust injury doctrine to bar recovery where the asserted injury, although linked to an alleged violation" }, { "docid": "18769467", "title": "", "text": "on this Court’s decision in Chrysler Corp. v. Fedders Corp., 643 F.2d 1229 (6th Cir.), cert. denied, 454 U.S. 893,102 S.Ct. 388, 70 L.Ed.2d 207 (1981), for the proposition that a stockholder in a corporation has standing to bring an antitrust action for injuries suffered to his interest in the corporation. There is, indeed, language in Chrysler Corp. supportive of the Gold-bergs’ assertion. See id. at 1235. A recent opinion of this Court, however, which applied the latest Supreme Court decisions in this area, makes clear that Chrysler Corp. is no longer controlling precedent for determining the proper party to bring an antitrust action. In Southaven Land Co., Inc. v. Malone & Hyde, Inc., 715 F.2d 1079 (6th Cir.1983), this Court reviewed the Supreme Court’s pronouncements in Blue Shield of Virginia v. McCready, 457 U.S. 465, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982) and Associated General Contractors of California, Inc. v. California State Council of Carpenters, supra, and was prompted to conclude that strict adherence to the “zone of interests” test utilized in Chrysler Corp. for determining a proper party to bring an antitrust action was no longer permissible. The Court therefore resolved “to consider, henceforth, the § 4 inquiry on a case by case basis by applying the criteria defined in Associated General Contractors.\" Southaven Land Co., Inc. v. Malone & Hyde, Inc., supra, at 1086. The pertinent elements identified in Associated General Contractors, include: (1) the causal connection between the antitrust violation and harm to the plaintiff and whether that harm was intended to be caused; (2) the nature of the plaintiff’s alleged injury including whether the plaintiff was a consumer or competitor in the relevant market; (3) the directness or indirectness of the injury, and the related inquiry of whether the damages are speculative; (4) the potential for du-plicative recovery or complex apportionment of damages; and (5) the existence of more direct victims of the alleged antitrust violation. Southaven Land Co., Inc. v. Malone & Hyde, Inc., supra, at 1085. Applying the pronouncements of Associated General Contractors and Southa-ven to the case at bar inescapably mandates the" }, { "docid": "4425420", "title": "", "text": "services is just as unlawful. Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975). In this case, plaintiffs maintain that IPA established a schedule of fees for services to which its competitor/members agreed to adhere and this is a per se violation of Section 1. 1. STANDING Defendants first argue that plaintiffs’ price-fixing claims must be dismissed because plaintiffs have not been injured sufficiently to confer standing on them to assert such a claim. In Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977), the Supreme Court held that plaintiffs must prove more than an injury causally linked to an illegal act. Rather, they must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful. The injury should reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation. 429 U.S. at 489, 97 S.Ct. at 697. (Emphasis in original.) In Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 535, 103 S.Ct. 897, 907, 74 L.Ed.2d 723 (1983) the Court stated that the standing inquiry revolved around “the plaintiff’s harm, the alleged wrongdoing by the defendants and the relationship among them.” The Court rejected a blanket rule, setting forth factors that should be analyzed instead. Those factors were recently repeated by the Sixth Circuit in Southaven Land Co. v. Malone & Hyde, Inc., 715 F.2d 1079, 1086 (6th Cir.1983). The “factors” expressly identified as such in the text include, inter alia, (1) the causal connection between the antitrust violation and harm to the plaintiff and whether that harm was intended to be caused; (2) the nature of the plaintiff’s alleged injury including the status of the plaintiff as consumer or competitor in the relevant market; (3) the directness or indirectness of the injury, and the related inquiry of whether the damages are speculative; (4) the potential for duplicative recovery or complex apportionment of damages; and (5)" }, { "docid": "18769468", "title": "", "text": "for determining a proper party to bring an antitrust action was no longer permissible. The Court therefore resolved “to consider, henceforth, the § 4 inquiry on a case by case basis by applying the criteria defined in Associated General Contractors.\" Southaven Land Co., Inc. v. Malone & Hyde, Inc., supra, at 1086. The pertinent elements identified in Associated General Contractors, include: (1) the causal connection between the antitrust violation and harm to the plaintiff and whether that harm was intended to be caused; (2) the nature of the plaintiff’s alleged injury including whether the plaintiff was a consumer or competitor in the relevant market; (3) the directness or indirectness of the injury, and the related inquiry of whether the damages are speculative; (4) the potential for du-plicative recovery or complex apportionment of damages; and (5) the existence of more direct victims of the alleged antitrust violation. Southaven Land Co., Inc. v. Malone & Hyde, Inc., supra, at 1085. Applying the pronouncements of Associated General Contractors and Southa-ven to the case at bar inescapably mandates the conclusion that the Goldbergs are not the proper parties to bring the antitrust action they allege. It should be noted preliminarily that the Goldbergs’ complaint, with minor changes, is merely a restatement of the complaint filed by the plaintiff corporations. The complaint fails to assert any injury different in kind or degree from the corporations’ injuries. While the complaint does allege a causal connection between the antitrust violations and the Gold-bergs’ losses as stockholders, it is apparent that other factors weigh heavily against permitting them to bring the action. First, the Goldbergs as individuals were neither competitors nor, for present purposes, consumers in the retail grocery market. The nature of their injury was essentially a loss on investment and not that of participants in the relevant market. Secondly, the Goldbergs’ injury is clearly indirect. The reduction in the value of the Goldbergs’ stock is merely a derivative effect of the injury to the corporations. Because of the indirectness of the Gold-bergs’ alleged injuries, an action by them presents the potential for duplicative recovery; once by" }, { "docid": "4425421", "title": "", "text": "in original.) In Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 535, 103 S.Ct. 897, 907, 74 L.Ed.2d 723 (1983) the Court stated that the standing inquiry revolved around “the plaintiff’s harm, the alleged wrongdoing by the defendants and the relationship among them.” The Court rejected a blanket rule, setting forth factors that should be analyzed instead. Those factors were recently repeated by the Sixth Circuit in Southaven Land Co. v. Malone & Hyde, Inc., 715 F.2d 1079, 1086 (6th Cir.1983). The “factors” expressly identified as such in the text include, inter alia, (1) the causal connection between the antitrust violation and harm to the plaintiff and whether that harm was intended to be caused; (2) the nature of the plaintiff’s alleged injury including the status of the plaintiff as consumer or competitor in the relevant market; (3) the directness or indirectness of the injury, and the related inquiry of whether the damages are speculative; (4) the potential for duplicative recovery or complex apportionment of damages; and (5) the existence of more direct victims of the alleged antitrust violation. 103 S.Ct. at 908-13. Thus, the common thread is an injury particular to antitrust-defined circumstances. However, the analysis differs depending on whether a consumer or competitor is challenging the illegal conduct. A significant element of the § 4 “standing requirement” is the nature of plain tiff’s alleged injury either as a customer or participant in the relevant market: [T]he Sherman Act was enacted to assure customers the benefits of price competition, and our prior cases have emphasized the central interest in protecting the economic freedom of participants in the relevant market. Id. (quoting Associated, 459 U.S. at 538, 103 S.Ct. at 908). Here, defendants contend that plaintiffs, as competitors and not consumers, have not suffered an antitrust injury merely because they seek to obtain reimbursement higher than defendants’ allegedly anticom-petitive levels. Thus, defendants maintain, the plaintiffs suffer an injury only to the extent that IPA reimbursement was at lower, more competitive levels. Accordingly, the “anticompetitive effect” actually worked to correct the very evil that" }, { "docid": "5788544", "title": "", "text": "particular plaintiff has the requisite “antitrust standing,” this court has interpreted the relevant Supreme Court opinions to mandate inquiry into the following factors: (1) the causal connection between the antitrust violation and the harm to the plaintiff and whether that harm was intended to be caused; (2) the nature of the plaintiff’s alleged injury including the status of the plaintiff as consumer or competitor in the relevant market; (3) the directness or indirectness of the injury, and the related inquiry of whether the damages are speculative; (4) the potential for duplicative recovery or complex apportionment of damages; and (5) the existence of more direct victims of the alleged antitrust violation. Fallis v. Pendleton Woolen Mills, Inc., 866 F.2d 209, 210 (6th Cir.1989); Province v. Cleveland Press Publishing Co., 787 F.2d 1047, 1050-51 (6th Cir.1986); Meyer Goldberg, Inc. v. Goldberg, 717 F.2d 290, 293-94 (6th Cir.1983); Southaven Land Co. v. Malone & Hyde, Inc., 715 F.2d 1079, 1085 (6th Cir.1983); see Associated General Contractors, 459 U.S. at 538-46, 103 S.Ct. at 908-13; Blue Shield of Virginia v. McCready, 457 U.S. 465, 472-84, 102 S.Ct. 2540, 2544-51, 73 L.Ed.2d 149 (1982). Plaintiffs’ argument in favor of finding antitrust standing hinges on their “status in the market.” Although they are not consumers or competitors of Fleet, Plaintiffs nonetheless assert that they are market “participants” whose injuries are “inextricably intertwined” with the antitrust violation since they have been “manipulated or utilized by [Defendants] as a fulcrum, conduit, or market force to injure competitors.” See Fallis, 866 F.2d at 211; Province, 787 F.2d at 1052; Southaven, 715 F.2d at 1086. We have noted, however, that status as the economic fulcrum does not automatically confer standing. Such a finding only means that Plaintiffs are “ ‘not automatically preclude[d]’ from bringing an antitrust action by the ‘status in the market’ prong of the standing test. The standing inquiry turns on a balance of several factors, not simply the plaintiff[s’] status in the market or role as an economic fulcrum.” Fallis, 866 F.2d at 211 (quoting Province, 787 F.2d at 1052). Analysis of the remaining factors leads us" }, { "docid": "21576815", "title": "", "text": "KENNEDY, Circuit Judge. Appellant David L. Fallis was a regional sales representative for Pendleton Woolen Mills, Inc. (Pendleton). Fallis alleges that Pendleton harassed him and ultimately terminated his contract because he refused to participate in a vertical price fixing scheme. According to appellant, Pendleton required him to boycott or punish “discounters” which sold for less than Pendleton’s “keystone” prices. He alleges that when he resisted the scheme, Pendleton retaliated by reducing his sales territory and, eventually, firing him. Fallis brought a federal antitrust action and state tort and contract actions against Pendleton. The District Court granted summary judgment for Pen-dleton on the antitrust claim, holding that Fallis lacked antitrust standing. The District Court also granted summary judgment for Pendleton in the tort action. The court applied Ohio law and concluded that no “public policy” tort for wrongful discharge exists in Ohio. The contract claim was tried to a jury, which found for Pendle-ton. Fallis appeals from each of these judgments. We affirm. I. ANTITRUST STANDING This Court has set forth a comprehensive framework for analyzing antitrust standing issues in Province v. Cleveland Press Publishing Co., 787 F.2d 1047 (6th Cir.1986) and Southaven Land Co. v. Malone & Hyde, Inc., 715 F.2d 1079 (6th Cir.1983). These cases elaborated a five-part test, which considers: (1) the causal connection between the antitrust violation and the harm to the plaintiff and whether that harm was intended to be caused; (2) the nature of the plaintiff’s alleged injury including the status of the plaintiff as consumer or competitor in the relevant market; (3) the directness or indirectness of the injury, and the related inquiry of whether the damages are speculative; (4) the potential for duplicative recovery or complex apportionment of damages; and (5) the existence of more direct victims of the alleged antitrust violation. Province, 787 F.2d at 1050-51. Standing turns on a balancing of these factors; “[n]o single factor is dispositive.” Id. at 1051. We will now consider each of these factors in light of the record in this case. Causal Connection and Intent to Cause Harm. In the present case, the causal nexus" } ]

[ { "docid": "4081804", "title": "", "text": "this appeal. Before the cigars were released from customs custody, and prior to the collector’s liquidation of the entry, revenue stamps were purchased by the importer in payment of the tax provided by section 400 of the Revenue Act of 1926 (U.S.C. title 26, section 832, 26 U.S.C.A. §§ 700(c), 701(a), and affixed to the imported merchandise in accordance with the provisions of section 845, U.S.C. title 26, 26 U.S.C.A. §§ 830(b), 881. The sole issue in the case is the claim made by counsel for appellant; that is, that, by virtue of the provisions of the reciprocal trade agreement with Cuba, appellant is entitled to a 20 per centum reduction of the tax represented by the revenue stamps. It is conceded by counsel for both parties, and it was so held by this court in the case of Faber, Coe & Gregg v. United States, 19 C.C.P.A., Customs, 8, T.D. 44851, that the so-called internal revenue tax provided for in sections 832 and 845 (26 U.S.C.A. §§ 700(c), 701(a), 830(b), 881), supra, is a customs duty. In our decision in the Faber, Coe & Gregg Case, supra, we held that, “although additional to and separate from the regular or primary duties provided by the Tariff Act of 1922,” revenue taxes assessed on imported merchandise in accordance with sections 832 and 845 (26 U.S.C.A. §§ 700(c), 701(a), 830(b), 881), supra, were customs duties; that, without regard to how they might be designated by the Congress, “taxes imposed on imported merchandise while it retains its ‘distinctive character’ as an import are customs duties, whether they be imposed at the time of importation or subsequent thereto”; and that the importer of cigars from Cuba was not entitled to a 20 per centum reduction of such revenue taxes or additional duties under the provisions of the treaty of commercial reciprocity concluded between the United States and the Republic of Cuba, December 11, 1902, approved by the Congress, December 17, 1903 (33 Stat. 3, U.S.C. title 19, sections 124 and 125, 19 U.S.C.A. §§ 124, 125). (Italics not quoted.) It is conceded by counsel" } ]

[ { "docid": "16303476", "title": "", "text": "64 CCPA-, C.A.D. 1185 (1977), the court held that article III of the Jay Treaty of 1794, under which plaintiff claimed exemption from imposition of customs duties, was abrogated by the War of 1812 and by subsequent inconsistent legislation by Congress. In Pasco Terminals, Inc. v. United States, 416 F.Supp. 1242, 76 Cust.Ct. 204, C.D. 4658 (1976), appeal pending, the court dismissed plaintiff’s suit against the imposition of dumping duties on imported sulphur on the ground that the plaintiff lacked standing. In Voss International Corp. v. United States, 78 Cust.Ct. -, C.D. 4698 (1977), the court held that the determination of injury by the Tariff Commission [now the International Trade Commission], achieved by a two to two vote of the five members of the Commission who attended the meeting, was valid under the provisions of 19 U.S.C. § 160(a) (1970). Indeed, cases raising issues involving the interpretation of the Antidumping Act of 1921 have been resolved exclusively by a single judge of this court. Some examples are: Matsushita Electric Industrial Company, Ltd., et al. v. United States Treasury Department et al., 67 Cust.Ct. 328, C.D. 4292 (1971), aff'd, 485 F.2d 1402, 60 CCPA 85, C.A.D. 1086 (1973); F. W. Myers & Co., Inc. v. United States, supra; Azufrera Panamericana, S. A. v. United States, 74 Cust.Ct. 97, C.D. 4591 (1975); Pasco Terminals, Inc. v. United States, supra; and Voss International Corp. v. United States, supra. Many other examples could be cited. In the absence of a showing of special factors or circumstances that warrant the designation of a three-judge panel, the judicial power of the Customs Court shall be exercised by a single judge. The plaintiff’s motion that the chief judge designate a three-judge panel in this action is denied. . Public Law 91-271. . See House Report No. 91-1067, 91st Cong., 2d Sess. (1970), U.S.Code Cong. & Admin.News 1970, p. 3188. . “§ 254. Single-judge trials. Except as otherwise provided in section 255 of this title, the judicial power of the Customs Court with respect to any action, suit or proceeding shall be exercised by a single judge, who" }, { "docid": "14982591", "title": "", "text": "unless a contrary legislative intent clearly is indicated, be preferred to terms of general description and to enumerations which are broader in scope and less specific.” Ibid. United States v. Astra Trading Corp., 44 CCPA 8,11, C.A.D. 627 (1956). The merchandise here is “primarily a wading boot” (R.13), or as referred to in the official papers received in evidence as an unmarked exhibit, “wader boots.” Although characterized by a distinctive name, it is no less a form of “boot” or “boots” within the intendment of the tariff laws. There can be no doubt of the applicability of the rule that an eo nomine statutory designation of an article, without limitation or contrary legislative intent, judicial decision, or administrative practice, includes all forms of the article. Astra Trading Corp. v. United States, 56 Cust.Ct. 555, 561, C.D. 2703 (1966); Nootka Packing Co. et al. v. United States, 22 CCPA 464, 470, T.D. 47464 (1935). In view of the foregoing, the court concludes that the imported merchandise, invoiced as “Wader Boots— Chest High,” was properly classified under paragraph 1537(b) of the Tariff Act of 1930, as modified by T.D. 53865 as “ [b] oots, shoes, or other footwear, wholly or in chief value of india rubber.” The aforementioned reasoning makes unnecessary a consideration of those cases cited by plaintiff to illustrate that not every article designed to be worn on the foot is necessarily classifiable as “footwear.” United States v. Kahn & Co., 13 CCPA 57, T.D. 40881 (1925) (baby “bootees”); W. J. Byrnes & Co. of New York, Inc., et al. v. United States, 38 Cust.Ct. 339, C.D. 1884 (1957) (paper slippers). It may nevertheless be added that the testimony in this case reveals clearly that waders are part of the “footwear line” and are merchandised as footwear. Although it is true that the merchandise medium through which articles are sold is not always determinative of their classification, there can be no doubt that the manner in which a merchant displays goods may have important probative value on the question of their tariff classification. See United States v. Ignaz Strauss &" }, { "docid": "1800930", "title": "", "text": "States, 22 CCPA 464, 470, T.D. 47464 (1935). In idew of the foregoing, the court concludes 'that the imported merchandise, invoiced as “Wader Boots - Chest High,” was properly classified under paragraph 1537 (b) of the Tariff Act of 1930, as modified by T.D. 53865 as “[b]oots, shoes, or other footwear, wholly or in chief value of india rubber.” The aforementioned reasoning makes unnecessary a consideration of those cases cited by plaintiff to illustrate that not every article designed to be worn on the foot is necessarily classifiable as “footwear.” United States v. Kahn & Co., 13 CCPA 57, T.D. 40881 (1925) (baby “bootees”); W. J. Byrnes & Co. of New York, Inc., et al. v. United States, 38 Cust. Ct. 339, C.D. 1884 (1957) (paper slippers). It may nevertheless be added that the testimony in this case reveals clearly that waders are part of the “footwear line” and are merchandised as footwear. Although it is true that the merchandise medium through which articles are sold is not always determinative of their classification, there can be no doubt that the manner in which a merchant displays goods may have important probative value on the question of their tariff classification. See United States v. Ignatz Strauss & Co., 37 CCPA 32, 35, C.A.D. 415 (1949); The Spesco Corporation v. United States, 62 Cust. Ct. 297, C.D. 3749 (1969); New York Merchandise Co., Inc. v. United States, 62 Cust. Ct. 38, C.D. 3671 (1969); Davis Products, Inc., et al. v. United States, 59 Cust. Ct. 226, C.D. 3127 (1967). As in all other cases involving a protest of the collector’s classification, there is a presumption that the classification is correct. F. H. Kaysing v. United States, 49 CCPA 69, 71, C.A.D. 798 (1962). The plaintiff bears the burden of establishing that the classification is erroneous and that the claimed classification is correct. Novelty Import Co., Inc. v. United States, 53 CCPA 28, 33, C.A.D. 872 (1966) ; United States v. Victoria Gin Co., Inc., et al., 48 CCPA 33, 35, C.A.D. 759 (1960); United States v. Gardel Industries, 33 CCPA 118, 121," }, { "docid": "16509997", "title": "", "text": "84.15) and radio-gramophones (heading 85.15). It appears, therefore, that a pump, if considered to be a multipurpose machine, is to be classified as a pump even though its “principal purpose” might otherwise result in its classification as a machine for a particular industrial application. In other words, again in common tariff parlance, the fact that a pump is chiefly used for a particular purpose does not remove it from classification as a pump under TSUS. The effect of the TSUS head-notes quoted above as applied to this case is that the subj'ect importations are classifiable as pumps for liquids and parts thereof even if they were specially designed and chiefly used as machinery for the manufacture of sugar. However, it should not be inferred that the evidentiary burdens of proving chief use and specific design have been established satisfactorily. We hold only that these considerations, even had they been proven, would not be sufficient to remove the subj'ect importations from classification under item 660.90. It is for the foregoing reasons that we do not agree that the subject articles, as conceded by defendant, are within the provision for sugar machinery. The conclusion expressed in the preceding paragraph should not be construed as an application of the rule of relative specificity. Rather, the effect of the cited headnote to subpart A may be compared to the effect of phrases, contained in earlier tariff statutes, such as: “whether or not more specifically provided for elsewhere”; “by whatever name known”; or “whether or not provided for elsewhere”. See e. g., Kayser & Co. (Inc.) v. United States, 13 Ct.Cust. Appls. 474, T.D. 41367; Western Cartridge Co. etc. v. E. I. DuPont de Nemours & Co. (Inc.), etc., 16 Ct.Cust. Appls. 229, T.D. 42839; Madame Adele v. United States, 23 Ct.Cust.Appls. 305, T.D. 48176; Richard Crittall Radiant Heating Corp. v. United States, 27 Cust. Ct. 193, C.D. 1369; Swiss Manufactures Association, Inc. et al. v. United States, 39 Cust.Ct. 227, C.D. 1933. For, if an article is described in a subpart A tariff description, the headnote to subpart A eliminates relative specificity from consideration" }, { "docid": "16509998", "title": "", "text": "that the subject articles, as conceded by defendant, are within the provision for sugar machinery. The conclusion expressed in the preceding paragraph should not be construed as an application of the rule of relative specificity. Rather, the effect of the cited headnote to subpart A may be compared to the effect of phrases, contained in earlier tariff statutes, such as: “whether or not more specifically provided for elsewhere”; “by whatever name known”; or “whether or not provided for elsewhere”. See e. g., Kayser & Co. (Inc.) v. United States, 13 Ct.Cust. Appls. 474, T.D. 41367; Western Cartridge Co. etc. v. E. I. DuPont de Nemours & Co. (Inc.), etc., 16 Ct.Cust. Appls. 229, T.D. 42839; Madame Adele v. United States, 23 Ct.Cust.Appls. 305, T.D. 48176; Richard Crittall Radiant Heating Corp. v. United States, 27 Cust. Ct. 193, C.D. 1369; Swiss Manufactures Association, Inc. et al. v. United States, 39 Cust.Ct. 227, C.D. 1933. For, if an article is described in a subpart A tariff description, the headnote to subpart A eliminates relative specificity from consideration and requires that the article be assessed as there provided. The headnote contains language of an ‘“invading character”, similar to the quoted phrases, indicating a congressional intent to give precedence in classification to an article described in subpart A. Accordingly, subpart A invades every other subpart of part 4 and removes therefrom articles described therein which also are described in subpart A. The subpart A headnote may be compared with the proviso to paragraph 1504 of the 1922 Act and paragraph 1604 of the 1930 Act which limited the inclusiveness of those paragraphs to articles not specified by name in the dutiable list. When a particular importation was so specified by name, it was not classifiable as an agricultural implement nor as sugar machinery even if exclusively used and specially designed for such restricted purposes. United States v. Sheepshearers Mdse. & Comm. Co., 20 Ct.Cust.Appls. 327, T.D. 46112; United States v. J. A. Freeman & Son, 29 C.C.P.A. 103, C.A.D. 177; Enrique Abarca and U. Casal et al. v. United States, 18 Ct.Cust.Appls. 370, T.D." }, { "docid": "20154613", "title": "", "text": "5 U.S.C.A. § 281b, infra, is limited to his rights, privileges, powers, and duties in respect to the importation, entry, or exportation of merchandise. The statute, section 3(a) of chapter 348 of the laws of 1927, 44 Stat. 1382, 5 U.S.C.A. § 281b, provides: “(a) The Secretary of the Treasury is authorized to confer or impose upon the Commissioner of Customs or any of the officers of the Bureau of Customs any of the rights, privileges, powers, or duties, in respect of the importation or entry of merchandise into, or exportation of merchandise from, the United States, vested in or imposed upon the Secretary of the Treasury by the Tariff Act of September 21, 1922 (ch. 356, 42 Stat. 858), or any other law.” Section 466 of the Tariff Act of 1930, supra, provides that the expenses of repairs of vessels made in a foreign country are liable to entry and the payment of duty. Section 498 of said tariff act, 19 U.S.C.A. § 1498, grants authority to the Secretary of the Treasury to prescribe rules and regulations for the declaration and entry of merchandise within the provisions of section 466, relating to repairs and equipment of vessels. These sections indicate an intent on the part of Congress that all items dutiable under section 466 shall be regarded, so far as declaration and entry are concerned, as merchandise. Pacific Transport Lines, Inc., v. United States, 29 Cust.Ct. 21, 27, C.D. 1439. This is also true as to the Secretary’s authority to delegate under 5 U.S.C.A. § 281b, supra. The construction claimed for by plaintiff would result in permitting the Secretary to delegate his powers as to the portion of section 466 which covers articles or materials but not as to the other items. Such an absurd or anomalous result is to be avoided. Hensel v. United States, 3 Ct.Cust.Appls. 117, T.D. 32366; Blass Co. (Inc,) v. United States, 12 Ct.Cust.Appls. 481, T.D. 40692; International Forwarding Co. v. United States, 16 Ct.Cust.Appls. 539, T.D. 43264. In our view, the Secretary had the authority under 5 U.S. C.A. § 281b to delegate" }, { "docid": "8288104", "title": "", "text": "the collector of the nature of the claim, it made no reference — as here— to any other document that would accomplish that purpose. . The Brussels Nomenclature lias had an important effect on the preparation of the Tariff Schedules. See e.g., Orazio J. Freni, et al. v. United States, 60 Cust.Ct., C.D. 3375 (1968); J. E. Bernard & Co., Inc. v. United States, 60 Cust.Ct., C.D. 3372 (1968); F. L. Smidth & Company v. United States, 59 Cust.Ct. 276, C.D. 3141 (1967); Pitney-Bowes, Inc. v. United States, 59 Cust.Ct. 181, C.D. 3116 (1967). . In comparison, tariff legislation prior to the Tariff Act of 1930 contained a provision for musical instruments but made no specific reference to music boxes. Paragraph 1541(a) of the Tariff Act of 1930, as originally enacted, similarly provided only for musical instruments but was later modified to cover “Music boxes and parts thereof.” However, unlike the present Tariff Schedules, the modified Tariff Act had no specific provision for musical movements. For cases involving paragraph 1541(a) and the predecessor provisions see e.g., F. B. Vandegrift & Co., Inc. v. United States, 54 CCPA 69, C.A.D. 908 (1967); Lador, Inc. v. United States, 48 CCPA 6, C.A.D. 753 (1960); United States v. Cody Manufacturing Co., Inc. et al., 44 CCPA 67, C.A.D. 639 (1957); Thorens, Inc. v. United States, 31 CCPA 125, C.A.D. 261 (1943); United States v. Borgfeldt & Co., 13 Ct.Cust.Appls. 620, T.D. 41461 (1926); J. E. Bernard & Company Inc. v. United States, 40 Cust.Ct. 563, Abstract 61971 (1958); Thorens Co. v. United States, 15 Cust.Ct. 165, C.D. 965 (1945); Lador, Inc. v. United States, 4 Cust.Ct. 123, C.D. 304 (1940); Marshall Field & Co. v. United States, 55 Treas. Dec. 972, Abstract 7659 (1929); Baldwin Shipping Co. v. United States, 44 Treas. Dec. 451, Abstract 46414 (1923). . Parenthetically, it will be observed that if an article is both a part of a toy provided for under item 737.90 and a music box movement provided for under item 726.75, the latter classification would govern. This result would be dictated by General Interpretative Rule" }, { "docid": "12189721", "title": "", "text": "the subject articles, as conceded by defendant, are within the provision for sugar machinery. The conclusion expressed in the preceding paragraph should not be construed as an application of the rule of relative specificity. Rather, the effect of the cited headnote to subpart A may be compared to the effect of phrases, contained in earlier tariff statutes, such as: “whether or not more specifically provided for elsewhere”; “by whatever name known”; or “whether or not provided for elsewhere”. See e.g., Kayser & Co. (Inc.) v. United States, 13 Ct. Cust. Appls. 474, T.D. 41367; Western Cartridge Co., etc. v. E. I. du Pont de Nemours & Co. (Inc.), etc., 16 Ct. Cust. Appls. 229, T.D. 42839; Madame Adele v. United States, 23 Ct. Cust. Appls. 305, T.D. 48176; Richard Crittall Radiant Heating Corp. v. United States, 27 Cust. Ct. 193, C.D. 1369; Swiss Manufactures Association, Inc., et al. v. United States, 39 Cust. Ct. 227, C.D. 1933. For, if an article is described in a subpart A tariff description, the headnote to subpart A eliminates relative specificity from consideration and requires that the article be assessed as there provided. The headnote contains language of an “invading character”, similar to the quoted phrases, indicating a congressional intent to give precedence in classification to an article described in subpart A. Accordingly, subpart A invades every other subpart of part 4 and removes therefrom articles described therein which also are described in sub-part A. The subpart A headnote may be compared with the proviso to paragraph 1504 of the 1922 Act and paragraph 1604 of the 1930 Act which limited the inclusiveness of those paragraphs to articles not specified by name in the dutiable list. When a particular importation was so specified by name, it was not classifiable as an agricultural implement nor as sugar machinery even if exclusively used and specially designed for such restricted purposes. United States v. Sheepshearers Mdse. & Comm. Co., 20 Ct. Cust. Appls. 327, T.D. 46112; United States v. J. A. Freeman & Son, 29 CCPA 103, C.A.D. 177; Enrique Abarca and U. Casal et al. v." }, { "docid": "13491224", "title": "", "text": "Watch Co. v. United States (Jaeger Watch Co., Inc, Party in Interest), 25 CCPA 330, T.D. 49425 (1938); Steinway & Sons v. United States, 23 Cust.Ct. 30, C.D. 1185 (1949); Geo. S. Bush & Co., Inc. v. United States, 32 Cust.Ct. 316, C.D. 1620 (1954), and cases cited. Interpretative rule 10(h) of the tariff schedules of the United States provides that “unless the context requires otherwise, a tariff description for an article covers such article, * * * whether finished or not finished.” Accordingly, it has been held under the tariff schedules that unfinished drill collars are classifiable as finished parts for boring machinery and that unfinished tool tips and inserts are classifiable as machinery parts of porcelain. The Servco Company v. United States, 68 Cust.Ct. 83, C.D. 4341 (1972), aff’d sub nom., United States v. The Servco Company, 60 CCPA 137, C.A.D. 1098, 477 F.2d 579 (1973) ; American Feldmuehle Corp. et al. v. United States, 64 Cust.Ct. 462, C.D. 4021 (1970). Cf. United States v. J. Gerber & Co., Inc., et al., 58 CCPA 110, C A.D. 1013, 436 F.2d 1390 (1971), and John V. Carr & Son, Inc. v. United States, 66 Cust.Ct. 316, C.D. 4209, 326 F.Supp. 973 (1971) , where the rule was held inapplicable in view of an expressed policy of Congress. It follows that merchandise which has progressed to the point of being an unfinished part of an article is precluded from classification under schedule 6, part 2, by headnote l(iv), where it is elsewhere provided for as a part unless the context requires otherwise. In the instant case, however, while plaintiff claims that the merchandise is identifiable as an unfinished part of a radio antenna, defendant contends it is still material. The general rule is that a thing may be classed as an unfinished article if in its imported condition it has been so far advanced beyond the stage of materials as to be dedicated to and commercially fit for use as that article and is incapable of being made into more than one article or class of articles. United States v." }, { "docid": "8916524", "title": "", "text": "word to be given such a broad construction, and we think it proper to resolve that doubt in favor of the importer. Other articles which have been held not to be machine tools are meat slicing machines (Gallagher & Ascher v. United States, 3 Ct.Cust.App. 520, T.D. 33168) and a secator used to cut metal by means of an oxy-acetylene flame (Keith Dun ham Co. v. United States, 26 CCPA 250, C.A.D. 24). Articles which have been held to be machine tools include a sparking machine tool, used to knock off small particles of metal by means of sparks which jump between the gap between the tool and workpiece, which replaced a conventional machine tool (United States v. Gehrig Hoban & Co., Inc., et al., 52 CCPA 32, C.A.D. 853) and a machine for straightening crooked or bent round pipes or tubes, which improved and advanced the material for further use (Mannesmann-Meer, Inc. v. United States, 55 Cust.Ct. 1, C.D. 2546). We turn now to a consideration of the language of headnote 1, supra, which originated with the Tariff Commission. Under the Customs Classification Act of 1954, the Tariff Commission was directed to make a complete study of the customs laws in order to establish schedules of tariff classification which would be logical in arrangement and terminology and adapted to changes which had occurred since 1930, to eliminate anomalies and illogical results in tariff classifications, and to simplify the determination and application of such classifications. In the course of its study, the Tariff Commission reviewed a number of existing tariff, commodity, and industrial classification systems including “Nomenclature for the Classification of Goods in Customs Tariffs” (usually referred to as the “Brussels Nomenclature”), “Standard Industrial Classification Manual,” “Standard International Trade Classifications,” “Schedule A, Statistical Classification of Commodities Imported Into the United States,” and “Schedule B, Statistical Classification of Domestic and Foreign Commodities Exported From the United States.” It reported: * * * As a result of such study, a tentative outline of proposed schedules was developed which evolved into the outline of the schedules reproduced at the end of this report." }, { "docid": "8288105", "title": "", "text": "e.g., F. B. Vandegrift & Co., Inc. v. United States, 54 CCPA 69, C.A.D. 908 (1967); Lador, Inc. v. United States, 48 CCPA 6, C.A.D. 753 (1960); United States v. Cody Manufacturing Co., Inc. et al., 44 CCPA 67, C.A.D. 639 (1957); Thorens, Inc. v. United States, 31 CCPA 125, C.A.D. 261 (1943); United States v. Borgfeldt & Co., 13 Ct.Cust.Appls. 620, T.D. 41461 (1926); J. E. Bernard & Company Inc. v. United States, 40 Cust.Ct. 563, Abstract 61971 (1958); Thorens Co. v. United States, 15 Cust.Ct. 165, C.D. 965 (1945); Lador, Inc. v. United States, 4 Cust.Ct. 123, C.D. 304 (1940); Marshall Field & Co. v. United States, 55 Treas. Dec. 972, Abstract 7659 (1929); Baldwin Shipping Co. v. United States, 44 Treas. Dec. 451, Abstract 46414 (1923). . Parenthetically, it will be observed that if an article is both a part of a toy provided for under item 737.90 and a music box movement provided for under item 726.75, the latter classification would govern. This result would be dictated by General Interpretative Rule 10 (ij) of the Tariff Schedules, which provides: a provision for “parts” of an article covers a product solely or chiefly used as a part of such article, hut does not prevail over a speeifio provision for such part. [Emphasis supplied.] Nor would this result be altered by Headnote 1, Schedule 7, Part 5, Subpart E of the Tariff Schedules which is applicable to the “toy” provision — item 737.90 — and provides: The articles described in the provisions of this subpart (except parts) shall be classified in such provisions, whether or not such articles are more specifically provided for elsewhere in the tariff schedules * * *. [Emphasis supplied.] Clearly, “parts of toys” are not subject to the foregoing all-embracive language and hence their classification is subject to General Interpretative Rule 10 (ij)." }, { "docid": "7490807", "title": "", "text": "(plaintiff’s exhibit 9) referred to these items as “whatchamacallit statues.” [Emphasis added.] This witness then testified that a statue of George Washington, without the pedestal, horse and other distractions, could be considered a doll in the very broad sense that it fits his definition of a representation of a human being in three dimensional form. Defendant’s second witness, who was at one time a senior toy buyer for Sears Roebuck, defined dolls as miniatures or likenesses of human beings, including babies and animals; in his view, dolls do not have to be a plaything used by children. (For example, collector dolls are “dolls” though they have no play value.) He added that it is usual, however, for dolls to contain an amusement factor. According to the witness, the present importations have amusement value to a child; they could be playthings and also could be room decorations. In the setting of this record, the first matter for determination is whether the importations are within the common meaning of the term doll. As to this, plaintiff insists that in order to determine whether the imported articles are dolls or figurines the court must weigh the evidence concerning the manner in which the articles are actually used. Defendant contends, to the contrary, that the provision for dolls, item 737.20, is an eo nomine provision, and since an eo nomine provision covers all forms of the article (New York Merchandise Co., Inc. v. United States, 62 Cust.Ct. 283, C.D. 3746, 305 F.Supp. 25 (1969), aff’d 58 CCPA 53, C.A.D. 1004, 435 F.2d 1315 (1970); Weyerhaeuser Company v. United States, 71 Cust.Ct. 81, 83, C.D. 4479 (1973); Nootka Packing Co., et al. v. United States, 22 CCPA 464, T.D. 47464 (1935)), the articles before the court, if they be dolls, are properly classifiable thereunder. It is well established in customs jurisprudence that the tariff provision for dolls is not a use provision but an eo nomine provision. United States v. Cody Manufacturing Co., Inc., et al., 44 CCPA 67, 73-4, C.A.D. 639 (1957); Louis Wolf & Co., Inc. v. United States, 15 Cust.Ct. 156, 161," }, { "docid": "13491223", "title": "", "text": "not classifiable under item 685.25. The imported merchandise consists of a piece of wire made to certain specifications and cut to length. It falls within the definition of wire in headnote 3(i), schedule 6, part 2B, supra, which includes wire cut to length. After importation, one end of the wire is chamfered and press-fitted into a small metal ball and the other end inserted into the base of an antenna or a section of a telescoping antenna. As imported, the merchandise is not a finished part of a radio antenna. However, if it is in fact and in law an unfinished part of a radio antenna, it would be classifiable under item 685.25 as a part of radio apparatus. Under prior tariff acts it has been held that a provision for parts includes unfinished parts, where the article has been so far advanced in manufacture as to be dedicated to a specific use and to have no other use or ultimate intendment. United States v. Schenkers, Inc., 17 CCPA 231, 233, T.D. 43669 (1929); Waltham Watch Co. v. United States (Jaeger Watch Co., Inc, Party in Interest), 25 CCPA 330, T.D. 49425 (1938); Steinway & Sons v. United States, 23 Cust.Ct. 30, C.D. 1185 (1949); Geo. S. Bush & Co., Inc. v. United States, 32 Cust.Ct. 316, C.D. 1620 (1954), and cases cited. Interpretative rule 10(h) of the tariff schedules of the United States provides that “unless the context requires otherwise, a tariff description for an article covers such article, * * * whether finished or not finished.” Accordingly, it has been held under the tariff schedules that unfinished drill collars are classifiable as finished parts for boring machinery and that unfinished tool tips and inserts are classifiable as machinery parts of porcelain. The Servco Company v. United States, 68 Cust.Ct. 83, C.D. 4341 (1972), aff’d sub nom., United States v. The Servco Company, 60 CCPA 137, C.A.D. 1098, 477 F.2d 579 (1973) ; American Feldmuehle Corp. et al. v. United States, 64 Cust.Ct. 462, C.D. 4021 (1970). Cf. United States v. J. Gerber & Co., Inc., et al., 58" }, { "docid": "14356356", "title": "", "text": "Secretary of the Treasury is whether or not to make regulations permitting the exception of articles from the marking requirements, if they meet the conditions described in the act. It is within his discretion to make or refuse to make such regulations. Givaudan Delawanna, Inc., v. United States, 64 Treas.Dec. 417, T.D. 46697, affirmed in 22 CCPA (Customs) 115, T.D. 47104; F. L. Smidth & Co. et al. v. United States, 64 Treas.Dec. 338, T.D. 46663; Eurasia Import Co., Inc. v. United States, 3 Cust.Ct. 169, C.D. 226, appeal dismissed, 28 CCPA (Customs) 349. Any regulations he makes must conform to. the statute. Givaudan Delawanna, Inc. v. United States, supra; G. W. Sheldon & Co. v. United States, 23 CCPA (Customs) 168, T.D. 48013. The court may determine whether the marking on the particular articles imported is in conflict with the regulations, and, if so, whether the regulations are reasonable and within the power of the Secretary under the statute. Gibson-Thomsen Co., Inc. v. United States, 2 Cust.Ct. 172, C.D. 117, affirmed sub nom. United States v. Gibson-Thomsen Co., Inc., 27 CCPA (Customs) 267, C.A.D. 98; Eurasia Import Co., Inc. v. United States, supra; Dr. Gemma Barzilai v. United States, 4 Cust.Ct. 25, C.D. 275; Hudson Shipping Company, Inc. v. United States, 30 Cust. Ct. 116, C.D. 1507. The case last cited involved section 304 (a) (3) (D) of the Tariff Act of 1930, as amended, supra and section 11.10(a) of the Customs Regulations of 1943, which provided: “ * * * The marking of the container of an article shall be regarded as reasonably indicating the origin of such article within the meaning of section 304(a)(3)(D), Tariff Act of 1930, as amended, if the container is sealed and the article is usually sold to the ultimate pur chaser without the container being opened to make the article readily available for inspection. * * * ” The merchandise consisted of artificial fireplaces, which were not marked, packed in cartons which were marked with the name of the country of origin. The articles were shipped to the ultimate consumer as imported" }, { "docid": "5008573", "title": "", "text": "part.) They teach that, notwithstanding the headnote language, the addition of lace, netting, braid, or fringe, for example, would not per se render an imported garment “ornamented”. Rather, the headnote “sets forth the circumstances under which fabrics and articles may be considered to be ornamented, and the types of embellishments which may accomplish that effect.” Blairmoor Knitwear Corp. et al. v. United States, 284 F.Supp. 315, 318, 60 Cust.Ct. 388, 392 (1968). In essence, in every case, the basic question is whether the additional materials or features were used primarily for the purpose of ornamentation. If the primary purpose was ornamentation, the imported article or garment has been held to be “ornamented” within the meaning of the tariff schedules. Ornamentation, as distinguished from a utilitarian purpose, implies adornment and embellishment, i. e., an enhancement in appearance and beauty. The cases also teach that the adornment or embellishment accomplished by the addition, such as the braid or fringe in this case, must be more than incidental. However, if the primary purpose of the addition is ornamental, an incidental utilitarian purpose will not prevent the garment from being considered “ornamented” for customs duty purposes. Inter-Maritime Fwdg. Co., Inc. v. United States, 69 Cust.Ct. 138, C.D. 4384 (1972). See also Paramount Bead Corp. et al. v. United States, 19 CCPA 385, T.D. 45522 (1932); Arthur J. Fritz & Co., Inc. v. United States, 52 Cust.Ct. 61, C.D. 2437 (1964). In the present case, therefore, the court must determine whether the fringe, braid and epaulets adorn or embellish the garments, and whether enhancing the beauty and appearance of the garments is their primary purpose. It is often stated in customs law that illustrative exhibits are potent witnesses. Karoware, Inc. v. United States, 564 F.2d 77, 65 CCPA 1 (1977); Marshall Field & Co. v. United States, 45 CCPA 72, C.A.D. 676 (1958). This is particularly true in a case where the issue is one of ornamentation. Baylis Brothers, Inc. v. United States, 282 F.Supp. 791, 60 Cust.Ct. 336 (1968), aff’d, 416 F.2d 1383, 56 CCPA 115 (1969). It is clear that the fringe added" }, { "docid": "7490808", "title": "", "text": "that in order to determine whether the imported articles are dolls or figurines the court must weigh the evidence concerning the manner in which the articles are actually used. Defendant contends, to the contrary, that the provision for dolls, item 737.20, is an eo nomine provision, and since an eo nomine provision covers all forms of the article (New York Merchandise Co., Inc. v. United States, 62 Cust.Ct. 283, C.D. 3746, 305 F.Supp. 25 (1969), aff’d 58 CCPA 53, C.A.D. 1004, 435 F.2d 1315 (1970); Weyerhaeuser Company v. United States, 71 Cust.Ct. 81, 83, C.D. 4479 (1973); Nootka Packing Co., et al. v. United States, 22 CCPA 464, T.D. 47464 (1935)), the articles before the court, if they be dolls, are properly classifiable thereunder. It is well established in customs jurisprudence that the tariff provision for dolls is not a use provision but an eo nomine provision. United States v. Cody Manufacturing Co., Inc., et al., 44 CCPA 67, 73-4, C.A.D. 639 (1957); Louis Wolf & Co., Inc. v. United States, 15 Cust.Ct. 156, 161, C.D. 963 (1945); The American Import Company v. United States, 22 Cust.Ct. 51, 53, C.D. 1158 (1949); Barum Co., Inc. v. United States, 30 Cust.Ct. 414, 417, Abs. 57251 (1953). Equally well established is the concept that a doll for tariff purposes is not confined to playthings for children but includes a wide range of other articles including but not limited to dolls for ornamenta- tion such as boudoir dolls, souvenir or prize dolls, dolls for display or advertising purposes, and dolls sold as gag items, bar gadgets, adult novelties, etc. Louis Wolf & Co., Inc. v. United States, supra, 15 Cust.Ct. at 157, 158; Gold-Silver & Co. v. United States, 35 Cust.Ct. 246, 247, Abs. 59301 (1955). Thus the following wide range of articles have been held to be dolls for customs purposes: “World Fair Dolls” made of celluloid and manufactured to “simulate a military uniform with the World’s Fair insignia of the ‘Perisphere’ and ‘Trylon’ on the hat,” Louis Wolf & Co., Inc. v. United States, 15 Cust.Ct. 156, C.D. 963 (1945); Small" }, { "docid": "23250316", "title": "", "text": "at the rate of 3.7% ad valorem. . A definition of the tariff term “drugs” can be traced even further, to paragraph 34 of the Tariff Act of 1922. United States v. Wm. Cooper & Nephews, Inc., 22 CCPA 31, 36, T.D. 47038, 1934 WL 2146 (1934) (citing Tariff Commission, Summary of Tariff Information 91 (1921)). This definition was retained in paragraph 34 of the Tariff Act of 1930, which stated that \"the term 'drug' wherever used in this Act shall include only those substances having therapeutic or medicinal properties and chiefly used for medicinal purposes....” Id. at 35 (emphasis omitted). In Synthetic Patents Co. v. United States, 11 Cust.Ct. 98, 104, C.D. 803 (1943), the court offered the following distinction: “drugs” were substances useful for medicinal purposes, while \"medicinal preparations” were products possessing therapeutic properties that were in ready condition for medicinal use. Id. The Customs Court revisited the distinction between drugs and medicinal preparations under the Tariff Act of 1930 in Synthetic Patents Co. v. United States, 12 Cust.Ct. 148, 152, C.D. 845 (1944). The court held that a substance possessing therapeutic properties, which were enhanced upon conversion into a medicinal preparation, was properly classified as a drug. Because the subject merchandise required a chemical change to achieve practical medicinal value, the court determined it was ineligible for classification as a medicinal preparation. Id. This distinction was further refined in Biddle Sawyer Corp. v. United States, 50 CCPA 85, 320 F.2d 416 (1963). The Biddle court determined that in order to be properly classifiable as a medicinal preparation, imported merchandise must possess “curative or alleviative properties in and of itself.” Biddle, 50 CCPA at 94, 320 F.2d 416. The court concluded that the subject merchandise did not possess therapeutic properties because it did not independently act as a curative. And, because the imported merchandise did not induce a desired physiological effect, the court determined that it was not eligible for classification as a medicinal preparation. It appears that appellant-importer did not argue, and the Biddle court did not consider, whether, by imparting properties that enhanced the effectiveness of" }, { "docid": "14982592", "title": "", "text": "paragraph 1537(b) of the Tariff Act of 1930, as modified by T.D. 53865 as “ [b] oots, shoes, or other footwear, wholly or in chief value of india rubber.” The aforementioned reasoning makes unnecessary a consideration of those cases cited by plaintiff to illustrate that not every article designed to be worn on the foot is necessarily classifiable as “footwear.” United States v. Kahn & Co., 13 CCPA 57, T.D. 40881 (1925) (baby “bootees”); W. J. Byrnes & Co. of New York, Inc., et al. v. United States, 38 Cust.Ct. 339, C.D. 1884 (1957) (paper slippers). It may nevertheless be added that the testimony in this case reveals clearly that waders are part of the “footwear line” and are merchandised as footwear. Although it is true that the merchandise medium through which articles are sold is not always determinative of their classification, there can be no doubt that the manner in which a merchant displays goods may have important probative value on the question of their tariff classification. See United States v. Ignaz Strauss & Co., 37 CCPA 32, 35, C.A.D. 415 (1949); The Spesco Corporation v. United States, 62 Cust.Ct., C.D. 3749 (1969); New York Merchandise Co., Inc. v. United States, 62 Cust.Ct., C.D. 3671 (1969); Davis Products, Inc., et al. v. United States, 59 Cust.Ct. 226, C.D. 3127 (1967). As in all other cases involving a protest of the collector’s classification, there is a presumption that the classification is correct. F.H. Kaysing v. United States, 49 CCPA 69, 71, C.A.D. 798 (1962). The plaintiff bears the burden of establishing that the classification is erroneous and that the claimed classification is correct. Novelty Import Co., Inc. v. United States, 53 CCPA 28, 33, C.A.D. 872 (1966); United States v. Victoria Gin Co., Inc., et al., 48 CCPA 33, 35, C.A.D. 759 (1960); United States v. Gardel Industries, 33 CCPA 118, 121, C.A.D. 325 (1946). The plaintiff has not sustained this burden and the protests are therefore overruled. Judgment will be entered accordingly." }, { "docid": "13027101", "title": "", "text": "It is our view that this argument is not well founded. We cannot see where the imposition of additional duties at the time of liquidation is retroactive in an arbitrary manner, as urged by appellant, because the statute itself gives ample notice that there may be a change from the duties assessed at entry at the time of liquidation.” The question of whether the appraisement herein violated the principle of “established and uniform practice” must also be resolved in favor of defendant. Plaintiff contends the change in interpretation of the COP statute would nullify the liquidation as a violation of an established and uniform practice. The basis of this position is the ambiguity of the statute and the right of an importer to rely upon a long standing practice. The cases of Henry Clay and Bock & Co. Ltd. v. United States, 41 CCPA 45, C.A.D. 527 (1953), Commonwealth Oil Refining Company, Inc. v. United States, 60 CCPA 162, 480 F.2d 1352 (1973), and United States v. Electrolux Corporation, 46 CCPA 143, C.A.D. 718 (1959), relied upon by plaintiff, relate to ambiguous statutes. The cases of United States v. H. Bayersdorfer & Co., 16 Ct.Cust.Appls. 43, T.D. 42717 and Benrus Watch Co. Inc., et al. v. United States, 53 Cust.Ct. 28, C.D. 2469 (1964), relied upon by plaintiff, relate to long-established administrative practice concerning classification. Reference to ascertaining the cost of production goes back as far as the Tariff Act of 1883 (section 9) and has continued throughout the various tariff acts. The question of ambiguity has not been satisfactorily established and in fact need not be considered under the circumstances of this case. It is noted that the statutory provision covering uniform practice (19 U.S.C. 1315(d)) begins with “No administrative ruling resulting in the imposition of a higher rate of duty or charge____” This relates to the imposition of a rate of duty which is imposed under the classification provisions of 19 U.S.C. § 1500 and not the appraisement provisions of 19 U.S.C. § 1500 and § 1402. Uniformity in classification, as indicated by the Bayersdorfer and Benrus cases," }, { "docid": "6261145", "title": "", "text": "court. With this we are in agreement. United States v. National Carloading Corp., James S. Baker Import Co., 48 CCPA 70, C.A.D. 767; Julius Forstmann & Co. v. United States, 26 CCPA 336, C.A.D. 37; Borneo Sumatra Trading Co., Inc. v. United States, 56 Cust.Ct. 166, C.D. 2624 (rehearing granted). In Norris Brothers v. United States, 43 Cust.Ct. 277, C.D. 2141, it was held that the terms “sheets or plates” and “rods, tubes, blocks, strips, blanks, or other forms” in paragraph 1539 (b) were mutually exclusive and that rectangular pieces of a laminated product 40 inches long and 22 inches wide and 36 inches long and 22 inches wide were sheets or plates rather than blocks or strips. Where Congress has distinguished “sheets” from “strips” or other forms, the courts have held that the term “sheets” means a broad general surface; that “sheets” are wide in comparison with their length and that “strips” are narrow in relation to their length. American Express Co. v. United States, 3 Ct.Cust.Appls. 475, T.D. 33121; Universal Shipping Co. et al. v. United States, 4 Ct.Cust.Appls. 245, T.D. 33479; Burgess Battery Co. v. United States, 19 Cust.Ct. 28, C.D. 1063, and cases and definitions cited; Lyons Transport v. United States, 36 Cust.Ct. 257, C.D. 1783. A strip does not cease to be a strip because it has been rolled up or is 3 miles long. United States v. Border Brokerage Company, 48 CCPA 38, C.A.D. 760. It is to be noted that the provision in paragraph 1539(b) under which plaintiff claims is limited to “sheets or plates,” whereas the following provision covers “other forms” as well as those enumerated. It is clear, therefore, that Congress intended the provision for “sheets or plates” to apply to those forms only. The merchandise here is not in the form of a “sheet” as that term is commonly understood and as construed by the courts. In fact, it is called “sheeting” on the invoice. Consequently, plaintiff’s claim cannot be sustained. The merchandise herein, while properly classifiable as a laminated product of which a synthetic resin is the chief binding" } ]

[ { "docid": "22420437", "title": "", "text": "sufficiently serious, in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996) (internal quotation marks omitted). Medical malpractice does not rise to the level of a constitutional violation unless the malpractice involves culpable recklessness—“an act or a failure to act by [a] prison doctor that evinces a conscious disregard of a substantial risk of serious harm.” Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.1998) (internal quotation marks omitted). In this connection, the Supreme Court has held that “a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.” Estelle, 429 U.S. at 106, 97 S.Ct. 285. It has long been the rule that a prisoner does not have the right to choose his medical treatment as long as he receives adequate treatment. See id. at 106-07, 97 S.Ct. 285. It is well-established that mere disagreement over the proper treatment does not create a constitutional claim. So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation. Chance, 143 F.3d at 703. Accordingly, we have noted that the “essential test is one of medical necessity and not one simply of desirability.” Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir.1986) (internal quotation marks omitted). Hill’s complaint falls far short of alleging a deliberate indifference on the part of Nurse Practitioner Aikin or Dr. Hohensee to his serious medical needs. As to each of these medical providers, Hill alleges only that he was denied “medical care—that is pain medication [and] nerve conduction study—leaving him needlessly to suffer.” Hill contends that the Motrin medication prescribed by Aikin was insufficient and opines that stronger pain medication was required and that a nerve conduction study was indicated by his condition. It does not appear from the complaint that Dr. Hohensee, the Jail physician, had any direct involvement in Hill’s treatment. It does appear from" } ]

[ { "docid": "21107656", "title": "", "text": "doctor’s medical judgment will not establish deliberate indifference, Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), deliberate indifference cannot be precluded if an inmate alleges that his medical treatment was based on a failure to treat, see Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir.2009). Key alleged that the physician’s assistant didn’t treat his disorders at all and that his complaints about his condition were otherwise ignored. This was sufficient to state a claim. Key next takes issue with the district judge’s determination that he did “not allege[ ] any facts that show [that the physician’s assistant] could have been aware of the risk of Plaintiff cutting himself prior to the examination on October 31, 2014.” His complaint, Key maintains, alleged that the physician’s assistant ignored him, despite being fully informed about his risk of self-mutilation either before October 31 or at the examination that day when he.personally told the assistant as much. We conclude that the district court was too hasty in dismissing the claim against the physician’s assistant, especially given its duty to construe Key’s pro se complaint liberally, see Erickson v. Pardus, 551 U.S. 89, 90, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Prison doctors may exhibit deliberate indifference to a known condition through inaction, Gayton v. McCoy, 593 F.3d 610, 623-24 (7th Cir.2010); Rodriguez, 577 F.3d at 830, or by delaying necessary treatment and thus aggravating the injury or needlessly prolonging an inmate’s pain, Gomez v. Randle, 680 F.3d 859, 865 (7th Cir.2012); Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1039-40 (7th Cir.2012); McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir.2010). Key set forth a plausible account of facts showing that the physician’s assistant demonstrated deliberate indifference through inaction. The assistant cut off medication, despite being aware of Key’s condition: the condition had been previously diagnosed, Key had been receiving medication to treat it, and Key told him at his appointment on October 31 about the self-mutilating impulses he experienced when he was off the medication. Regarding his failure-to-protect claim against the corrections officers (defendants" }, { "docid": "14717095", "title": "", "text": "injury or unnecessarily prolonged an inmate’s pain.” McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir.2010) (citing Estelle, 429 U.S. at 104-05, 97 S.Ct. 285). “Even a few days’ delay in addressing a severely painful but readily treatable condition suffices to state a claim of deliberate indifference.” Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1040 (7th Cir.2012). We find that, at this early stage in the proceedings, Gomez’s complaint asserts sufficient factual allegations to state a claim for relief under the Eighth Amendment and Estelle. First, Gomez has sufficiently pled that he was suffering from an objectively serious medical condition. “A medical need is considered sufficiently serious if the inmate’s condition has been diagnosed by a physician as mandating treatment or is so obvious that even a lay person would perceive the need for a doctor’s attention.” Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.2011) (internal quotation marks and punctuation omitted). The medical condition need not be life-threatening; “it could be a condition that would result in further significant injury or unnecessary and wanton infliction of pain if not treated.” Id. (quoting Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir.2010)). Here, Gomez alleges he suffered a shotgun wound and shortly thereafter experienced excessive bruising and bleeding around the wound. Gomez asserts that he was in pain and believed the wound was becoming infected. In addition, Dunlap, Palmer, and the medical technician all believed Gomez needed treatment shortly following his injury. This is enough to plead a serious medical need. Gomez has also sufficiently alleged deliberate indifference, at least with respect to the unknown medical technician and Sergeant Palmer. The medical technician told Gomez that she would bring him medical supplies to treat his injury, but he never received these supplies. Palmer became aware of Gomez’s injury while he was on rounds and, although he agreed to check on Gomez’s medical supplies, there is no evidence that he carried out that promise. Thus, despite these officials’ knowledge of his injuries, Gomez did not receive treatment until four days later. And even though this delay did not exacerbate Gomez’s" }, { "docid": "22252848", "title": "", "text": "care possible, he is entitled to reasonable measures to meet a substantial risk of serious harm. Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir.1997). Arnett alleges that the medical defendants, despite their knowledge of his serious medical condition, ignored his request for effective treatment for over ten months. Arnett’s allegations that the medical defendants knowingly ignored his complaints of pain by continuing with a course of treatment that was ineffective and less efficacious without exercising professional judgment are sufficient to state a claim. See Berry, 604 F.3d at 441-42 (“Where [inmate] made a modest request for treatment ..., Dr. Butler’s obdurate refusal to alter [inmate’s] course of treatment despite his repeated reports that the medication was not working and his condition was getting worse, is sufficient to defeat her motion for summary judgment.”) (internal citations and quotation marks omitted). At this stage, we cannot say that Arnett’s allegations describe only simple negligence, as opposed to deliberate indifference to a worsening medical condition. See, e.g., Simek, 193 F.3d at 490 (plaintiff stated a claim where prison doctor delayed arranging appointments for inmate to see specialists and then failed to follow the specialists’ advice, during which time inmate’s condition continued to worsen). Maybe Arnett will be unable to support his factual allegations with admissible evidence. Maybe Beighley and Paul-Blanc properly relied on the advice of Dr. Wilson. Maybe Dr. Wilson can show that he legitimately explored alternative options and rejected them for valid reasons or that his treatment decisions were otherwise based on his medical judgment. These, and other questions, will need to be explored through discovery. Whether Ar-nett can support his allegations that the medical defendants were deliberately indifferent remains to be seen. The district court was too hasty in dismissing his claims against the medical defendants, especially given its duty to construe pro se complaints liberally. See McGowan, 612 F.3d at 640 (inmate stated a claim where he set forth a “plausible account of the facts showing how much delay he experienced, how often he and others asked [the defendant] to act, and what the consequences were of inaction.”)." }, { "docid": "18084341", "title": "", "text": "of professional judgment, that is, no minimally competent professional would have so responded under those circumstances.”). By contrast, evidence that some medical professionals would have chosen a different course of treatment is insufficient to make out a constitutional claim. Steele v. Choi, 82 F.3d 175, 179 (7th Cir. 1996). Even among the medical community, the permissible bounds of competent medical judgment are' not always clear, particularly because “it is implicit in the professional judgment standard itself ... that inmate medical care decisions must be fact-based .with respect to the particular inmate, the severity and stage of his condition, the likelihood and imminence of further harm and the efficacy of available treatments.” Roe v. Elyea, 631 F.3d 843, 859 (7th Cir. 2011). So it can be challenging to draw a line between an acceptable difference of opinion (especially because even admitted medical malpractice does not automatically give rise to a constitutional violation), and an action that reflects sub-minimal competence and crosses the threshold into deliberate indifference. One hint of such a departure is when a doctor refuses to take instructions from a specialist. Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011); Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999). Another is when he or she fails to follow an existing protocol. “While published requirements for health care do not create constitutional rights, such protocols certainly provide circumstantial evidence that a prison health care gatekeeper knew of a substantial risk of serious harm.” Mata v. Saiz, 427 F.3d 745, 757 (10th Cir. 2005). Another situation that might establish a departure from minimally competent medi cal judgment is where a prison official persists in a course of treatment known to be ineffective. Walker; 233 F.3d at 499 (citations omitted). For example, if knowing a patient faces a serious risk of appendicitis, the prison official gives the patient an aspirin and sends him back to his cell, a jury could find deliberate indifference even though the prisoner received some treatment. Sherrod, 223 F.3d at 612; see also Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005) (continuing to treat" }, { "docid": "19067898", "title": "", "text": "see also Arnett, 658 F.3d at 751 (prisoner need not show that his or her medical needs were “literally ignored”). Deliberate indifference may occur where a prison official, having knowledge of a significant risk to inmate health or safety, administers “blatantly inappropriate” medical treatment, Edwards, 478 F.3d at 831, acts in a manner contrary to the recommendation of specialists, Arnett, 658 F.3d at 753, or delays a prisoner’s treatment for non-medical reasons, thereby exacerbating his pain and suffering. McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir.2010). Based on a review of the complaint and attached documents, we have no trouble finding that Perez states a valid Eighth Amendment claim. Perez sets forth a plausible account of the facts showing the severity of his injury, how much delay he experienced in obtaining meaningful treatment, how often he asked various officials to intervene on his behalf, and the consequences of their inaction. Our decision in Edwards is squarely on point. There, the plaintiff alleged that “he severely injured' his finger while in prison and failed to receive adequate, timely care for a non-medical reason ... resulting] in permanent disfigurement, loss of range of motion, and the infliction of unnecessary pain.” 478 F.3d at 830. We held that these allegations were sufficient to “satisfy federal pleading requirements and state a claim for deliberate indifference.” Id. Perez’s allegations, which are virtually identical, are also sufficient. Because Perez’s allegations against the individual' defendants are different, we address them individually below. 1. The Prison Physician— Dr. Fenoglio Perez’s complaint alleges that his prison physician, Dr. James Fenoglio, failed to provide him with adequate, timely care and ignored the treatment recommendations of specialists at the Carle Clinic. “Prison physicians will be liable under the Eighth Amendment if they intentionally disregard a known, objectively serious medical condition that poses an excessive risk to an inmate’s health.” Gonzalez v. Feinerman, 663 F.3d 311, 313 (7th Cir.2011). A delay in treatment may show deliberate indifference if it exacer bated the inmate’s injury or unnecessarily prolonged his pain. McGowan, 612 F.3d at 640; Edwards, 478 F.3d at 831. Whether the" }, { "docid": "23596265", "title": "", "text": "two medical professionals, about the proper course of treatment generally is insufficient, by itself, to establish an Eighth Amendment violation. Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir.2006). The federal courts will not interfere with a doctor’s decision to pursue a particular course of treatment unless that decision represents so significant a departure from accepted professional standards or practices that it calls into question whether the doctor actually was exercising his professional judgment. Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.2011); Sain, 512 F.3d at 895. Finally, with regard to Mr. Pyles’s claim against Wexford, because § 1983 does not permit liability to rest on the doctrine of respondeat superior, Maniscalco v. Simon, 712 F.3d 1139, 1145-46 (7th Cir.2013), Mr. Pyles was required to show that a Wexford policy was the “direct cause” of or “moving force” behind his constitutional injury. Minix v. Canarecci, 597 F.3d 824, 832 (7th Cir.2010). B. With those standards in mind, we turn first to Mr. Pyles’s conditions-of-confinement claim against Warden Gaetz. Mr. Pyles’s complaint alleges that Warden Gaetz consciously ignored a safety hazard after being told about that hazard. The accident and the severity of Mr. Pyles’s injuries raise an inference that the stairway used to access the “six gallery” showers was unsafe for that purpose. Before he was injured, Mr. Pyles had addressed and sent his “emergency grievance” directly to Warden Gaetz, see Ill. Admin. Code tit. 20, § 504.840. Yet according to Mr. Pyles, his grievance was not acknowledged in the following weeks before his fall, and neither was any change made to lessen the hazard presented by the wet stairs. These allegations make out, at this stage of the proceedings, a plausible claim that Warden Gaetz knowingly turned a blind eye to the hazard which led to Mr. Pyles’s injury. The district court’s analysis of the complaint gives us pause. Instead of asking whether Mr. Pyles’s complaint states a plausible claim of deliberate indifference, the district court required that Mr. Pyles plead facts and, even before discovery, “show that Defendant Gaetz acted with a sufficiently culpable state of mind.”" }, { "docid": "14717094", "title": "", "text": "was prematurely dismissed. B. Deliberate Indifference Next, Gomez asserts that prison officials were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. The district court dismissed this claim for three reasons: (1) Gomez’s allegations were insufficient to meet the standard set forth in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); (2) none of the named defendants were involved in Gomez’s injuries; and (3) any claim against an unnamed defendant was barred by the statute of limitations. As explained in the previous section, we reject the district court’s statute of limitations rationale. A prisoner’s claim for deliberate indifference must establish “(1) an objectively serious medical condition; and (2) an official’s deliberate indifference to that condition.” Arnett, 658 F.3d at 750. Deliberate indifference is proven by demonstrating that a prison official knows of a substantial risk of harm to an inmate and “either acts or fails to act in disregard of that risk.” Id. at 751. Delaying treatment may constitute deliberate indifference if such delay “exacerbated the injury or unnecessarily prolonged an inmate’s pain.” McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir.2010) (citing Estelle, 429 U.S. at 104-05, 97 S.Ct. 285). “Even a few days’ delay in addressing a severely painful but readily treatable condition suffices to state a claim of deliberate indifference.” Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1040 (7th Cir.2012). We find that, at this early stage in the proceedings, Gomez’s complaint asserts sufficient factual allegations to state a claim for relief under the Eighth Amendment and Estelle. First, Gomez has sufficiently pled that he was suffering from an objectively serious medical condition. “A medical need is considered sufficiently serious if the inmate’s condition has been diagnosed by a physician as mandating treatment or is so obvious that even a lay person would perceive the need for a doctor’s attention.” Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.2011) (internal quotation marks and punctuation omitted). The medical condition need not be life-threatening; “it could be a condition that would result in further significant injury or unnecessary and" }, { "docid": "19067899", "title": "", "text": "receive adequate, timely care for a non-medical reason ... resulting] in permanent disfigurement, loss of range of motion, and the infliction of unnecessary pain.” 478 F.3d at 830. We held that these allegations were sufficient to “satisfy federal pleading requirements and state a claim for deliberate indifference.” Id. Perez’s allegations, which are virtually identical, are also sufficient. Because Perez’s allegations against the individual' defendants are different, we address them individually below. 1. The Prison Physician— Dr. Fenoglio Perez’s complaint alleges that his prison physician, Dr. James Fenoglio, failed to provide him with adequate, timely care and ignored the treatment recommendations of specialists at the Carle Clinic. “Prison physicians will be liable under the Eighth Amendment if they intentionally disregard a known, objectively serious medical condition that poses an excessive risk to an inmate’s health.” Gonzalez v. Feinerman, 663 F.3d 311, 313 (7th Cir.2011). A delay in treatment may show deliberate indifference if it exacer bated the inmate’s injury or unnecessarily prolonged his pain. McGowan, 612 F.3d at 640; Edwards, 478 F.3d at 831. Whether the length of delay is tolerable depends upon the seriousness of the condition and the ease of providing treatment. McGowan, 612 F.3d at 640. In some cases, even brief, unexplained delays in treatment may constitute deliberate indifference. See Edwards, 478 F.3d at 831-32 (two-day delay in treatment for open dislocated finger for no medical reason stated a claim against prison doctor for deliberate indifference); Cooper v. Casey, 97 F.3d 914, 917 (7th Cir.1996) (“whether the plaintiffs were in' sufficient pain to entitle them to pain medication within the first 48 hours after the beating” presented question for jury). Perez’s complaint alleges with specificity a number of troubling delays in his treatment. After sustaining a gaping wound and open dislocation, he was forced to wait 24 hours before seeing a physician with authority to prescribe medication or suture wounds. After being seen by Dr. Fenoglio, who determined that the wound was so serious it required the care of a specialist, Perez had to wait four days (and had to file a grievance) before being sent to the" }, { "docid": "11378321", "title": "", "text": "such a substantial departure from accepted professional standards that it is reasonable to infer that Dr. Al-Shami did not base his decision on a medical judgment. Holloway cites Ralston v. McGovern, 167 F.3d 1160 (7th Cir.1999), in support of his contention that Dr. Al-Shami’s deliberate indifference stemmed from his decision not to defer to Holloway’s physician’s orders, but he misinterprets this court’s reasoning in that case. In Ralston, we held that a prison guard’s refusal to give an inmate his prescribed medication after the inmate complained that he could not swallow and that he was spitting up blood constitutes deliberate indifference. Ralston, 167 F.3d at 1161-62. But we did not suggest that prison doctors must always defer to the judgment of a doctor who treated an inmate prior to his detention. Rather, the prison physician, as the inmate’s acting primary care doctor, is free to make his own, independent medical determination as to the necessity of certain treatments or medications, so long as the determination is based on the physician’s professional judgment and does not go against accepted professional standards. Cf. Arnett v. Webster, 658 F.3d 742, 753-54 (7th Cir.2011) (concluding that a prison physician’s refusal to prescribe a substitute anti-inflammatory medication in place of an inmate’s previously prescribed Enbrel after ten months of complaints could amount to deliberate indifference); Gil v. Reed, 381 F.3d 649 (7th Cir.2004) (concluding that an issue of material fact existed as to deliberate indifference where a prison physician prescribed Tylenol III to an inmate post-surgery without justification and against the surgeon’s explicit orders not to do so because of the potential side effects). The court in Ralston held only that once a prison physician prescribes medication, a prison guard should not refuse to give the inmate the medication when he needs it. Ralston, 167 F.3d at 1161-62. Dr. Al-Shami considered Holloway’s condition and prior treatment before prescribing his medication on the day Holloway arrived at the jail. For the treatment of Holloway’s chronic pain, Dr. Al-Shami prescribed two pain medications as a substitute for Oxycontin, and he prescribed additional medications to prevent Holloway from" }, { "docid": "23466660", "title": "", "text": "negligence, does not violate the Constitution. Estelle, 429 U.S. at 105-06, 97 S.Ct. 285; Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir.2009). Only deliberate indifference or worse in the face of a serious medical need will do. Estelle, 429 U.S. at 103-04, 97 S.Ct. 285; Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir.2008). A delay in treatment may constitute deliberate indifference if the delay exacerbated the injury or unnecessarily prolonged an inmate’s pain. Estelle, 429 U.S. at 104-05, 97 S.Ct. 285; Gayton v. McCoy, 593 F.3d 610, 619 (7th Cir.2010); Edwards v. Snyder, 478 F.3d 827, 832 (7th Cir.2007). There is no question that McGowan’s complaint sufficiently alleges a serious medical need. The issue here is whether the complaint also plausibly suggests that either Gardner or Chapman or both were deliberately indifferent to that need. We conclude that the district court was too hasty in dismissing the claim against Chapman, especially given its duty to construe McGowan’s pro se complaint liberally. See Erickson, 551 U.S. at 94, 127 S.Ct. 2197; Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). McGowan set forth a plausible account of the facts showing how much delay he experienced, how often he and others asked Chapman to act, and what the consequences were of inaction. Delay is not a factor that is either always, or never, significant. Instead, the length of delay that is tolerable depends on the seriousness of the condition and the ease of providing treatment. See Grieveson v. Anderson, 538 F.3d 763, 778-80 (7th Cir. 2008) (guards could be liable for delaying treatment for painful broken nose by at least a day-and-a-half); Edwards, supra, 478 F.3d at 831 (two-day delay in treatment for open dislocated finger for no medical reason stated a claim against prison doctor for deliberate indifference); Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir.1997) (dismissal for failure to state a claim proper because six-day wait to see a doctor was not unreasonably long for infected cyst deemed not that severe); Cooper v. Casey, 97 F.3d 914, 916-17 (7th Cir.1996) (presented jury" }, { "docid": "4873532", "title": "", "text": "Board v. Farnham, 394 F.3d 469, 478 (7th Cir.2005) (quoting Henderson v. Sheahan, 196 F.3d 839, 845 n. 2 (7th Cir.1999)). Courts interpret the Eighth Amendment, as incorporated through the Fourteenth Amendment, to impose a duty on states “to provide adequate medical care to incarcerated individuals.” Johnson v. Doughty, 433 F.3d 1001, 1010 (7th Cir.2006) (quoting Boyce v. Moore, 314 F.3d 884, 888-89 (7th Cir.2002)). Officials violate this duty if they “display deliberate indifference to serious medical needs of prisoners.” Id. at 1010 (internal quotation omitted). To successfully appeal the district court’s entry of summary judgment to the defendants on his deliberate indifference claim, McGee must satisfy two elements, one objective and one subjective. King v. Kramer, 680 F.3d 1013, 1018 (7th Cir.2012). To satisfy the objective element, McGee must “present evidence supporting the conclusion that he had an objectively serious medical need.” Id. (internal quotation omitted). “A medical need is considered sufficiently serious if the inmate’s condition has been diagnosed by a physician as mandating treatment or is so obvious that even a lay person would perceive the need for a doctor’s attention.” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir.2012) (quoting Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.2011)). As for the subjective element, McGee must show that the defendants were aware of his serious medical need and were deliberately indifferent to it. King, 680 F.3d at 1018. “Deliberate indifference ‘is more than negligence and approaches intentional wrongdoing.’ ” Johnson v. Snyder, 444 F.3d 579, 585 (7th Cir.2006) (quoting Collignon v. Milwaukee Cnty., 163 F.3d 982, 988 (7th Cir.1998)). To establish deliberate indifference, McGee must meet “essentially a criminal recklessness standard, that is, ignoring a known risk.” Id. Even gross negligence is insufficient to impose constitutional liability on the appellees. Id. In this case, no one disputes that McGee’s cancer, course of treatment, and the resulting condition of his legs, including his edema, constitute a serious medical condition requiring ongoing attention. It is important to understand, however, that this case does not present questions about the adequacy of the cancer treatment McGee has received. McGee advances" }, { "docid": "23596263", "title": "", "text": "The burden is on the prisoner to demonstrate that prison officials violated the Eighth Amendment, and that burden is a heavy one. See Whitley v. Albers, 475 U.S. 312, 325, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). In order to state a claim under the Eighth Amendment for deliberate indifference to a hazardous condition of confinement, Mr. Pyles needed only to allege that Warden Gaetz deliberately ignored a prison condition that presented an objectively, sufficiently serious risk of harm. See Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir.2008). Although Mr. Pyles was required to allege that Warden Gaetz acted with a sufficiently culpable state of mind, he could meet this burden by asserting that the warden knew about the hazardous condition and “turned a blind eye to it.” Vance v. Peters, 97 F.3d 987, 994 (7th Cir.1996). Similarly, to prevail on his medical claim, Mr. Pyles was required to make two showings. First, he needed to demonstrate that he suffers from an objectively serious medical condition. Arnett v. Webster, 658 F.3d 742, 750 (7th Cir.2011). A medical condition is objectively serious if a physician has diagnosed it as requiring treatment, or the need for treatment would be obvious to a layperson. Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir.2009). Second, Mr. Pyles had to demonstrate that Dr. Fahim knew about his condition and the risk it posed, but disregarded that risk. Arnett, 658 F.3d at 751. Something more than negligence or even malpractice is required. Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir.2008). A prisoner may establish deliberate indifference by demonstrating that the treatment he received was “blatantly inappropriate.” Greeno v. Daley, 414 F.3d 645, 654 (7th Cir.2005) (quoting Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir.1996)). Making that showing is not easy: “A medical professional is entitled to deference in treatment decisions unless ‘no minimally competent professional would have so responded under those circumstances.’ ” Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir.2008) (quoting Collignon v. Milwaukee Cnty., 163 F.3d 982, 988 (7th Cir.1998)). Disagreement between a prisoner and his doctor, or even between" }, { "docid": "22252846", "title": "", "text": "F.3d 588, 594 (7th Cir.2001) (failure to respond to inmate’s request for prescribed heart medication); see also Ralston v. McGovern, 167 F.3d 1160, 1162 (7th Cir.1999) (refusal to administer prescribed pain medication); Jones v. Simek, 193 F.3d 485, 490-91 (7th Cir.1999) (failure to follow advice of specialists). Arnett had been prescribed Enbrel for his RA before his arrival at Terre Haute, repeatedly asked for the medication after his arrival, and obtained a letter from Dr. Davis informing Dr. Wilson to place him back on the medication. Even if the prison couldn’t get Enbrel because it wasn’t on the formulary, medical personnel cannot stand idly by for more than ten months while Arnett’s RA progressively worsened and caused permanent damage to his joints; they must explore alternative treatments that are available. See, e.g., Norfleet, 439 F.3d at 395 (inmate treated by Dr. Webster received Naprosyn (a NSAID) for his RA). Although the defendants provided him pain medicine, a medical professional’s actions may reflect deliberate indifference if he “chooses an easier and less efficacious treatment without exercising professional judgment.” See McGowan, 612 F.3d at 641 (quotation marks omitted); see also Gil v. Reed, 381 F.3d 649, 663 (7th Cir.2004) (where outside doctor prescribed prisoner Vicodin, but it was not on the prison formulary, the prison doctor couldn’t simply substitute with an ineffective alternative medication; he needed to consider other more effective substitutes); Kelley v. McGinnis, 899 F.2d 612, 616 (7th Cir.1990) (complaint sufficient to state claim where plaintiff alleged that clinic personnel deliberately gave him certain kind of treatment knowing that it was ineffective). A prison physician cannot simply continue with a course of treatment that he knows is ineffective in treating the inmate’s condition. See Greeno, 414 F.3d at 655. Arnett has an inflammatory condition, yet he was never provided anti-inflammatory medication, not even aspirin, a well-known and readily available NSAID. Ar-nett wasn’t seeking an unconventional treatment; he sought medication that would reduce his pain and swelling and slow the progression of his RA. Although an inmate is not entitled to demand specific care and is not entitled to the best" }, { "docid": "23596264", "title": "", "text": "Cir.2011). A medical condition is objectively serious if a physician has diagnosed it as requiring treatment, or the need for treatment would be obvious to a layperson. Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir.2009). Second, Mr. Pyles had to demonstrate that Dr. Fahim knew about his condition and the risk it posed, but disregarded that risk. Arnett, 658 F.3d at 751. Something more than negligence or even malpractice is required. Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir.2008). A prisoner may establish deliberate indifference by demonstrating that the treatment he received was “blatantly inappropriate.” Greeno v. Daley, 414 F.3d 645, 654 (7th Cir.2005) (quoting Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir.1996)). Making that showing is not easy: “A medical professional is entitled to deference in treatment decisions unless ‘no minimally competent professional would have so responded under those circumstances.’ ” Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir.2008) (quoting Collignon v. Milwaukee Cnty., 163 F.3d 982, 988 (7th Cir.1998)). Disagreement between a prisoner and his doctor, or even between two medical professionals, about the proper course of treatment generally is insufficient, by itself, to establish an Eighth Amendment violation. Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir.2006). The federal courts will not interfere with a doctor’s decision to pursue a particular course of treatment unless that decision represents so significant a departure from accepted professional standards or practices that it calls into question whether the doctor actually was exercising his professional judgment. Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.2011); Sain, 512 F.3d at 895. Finally, with regard to Mr. Pyles’s claim against Wexford, because § 1983 does not permit liability to rest on the doctrine of respondeat superior, Maniscalco v. Simon, 712 F.3d 1139, 1145-46 (7th Cir.2013), Mr. Pyles was required to show that a Wexford policy was the “direct cause” of or “moving force” behind his constitutional injury. Minix v. Canarecci, 597 F.3d 824, 832 (7th Cir.2010). B. With those standards in mind, we turn first to Mr. Pyles’s conditions-of-confinement claim against Warden Gaetz. Mr. Pyles’s complaint alleges that Warden" }, { "docid": "22252847", "title": "", "text": "professional judgment.” See McGowan, 612 F.3d at 641 (quotation marks omitted); see also Gil v. Reed, 381 F.3d 649, 663 (7th Cir.2004) (where outside doctor prescribed prisoner Vicodin, but it was not on the prison formulary, the prison doctor couldn’t simply substitute with an ineffective alternative medication; he needed to consider other more effective substitutes); Kelley v. McGinnis, 899 F.2d 612, 616 (7th Cir.1990) (complaint sufficient to state claim where plaintiff alleged that clinic personnel deliberately gave him certain kind of treatment knowing that it was ineffective). A prison physician cannot simply continue with a course of treatment that he knows is ineffective in treating the inmate’s condition. See Greeno, 414 F.3d at 655. Arnett has an inflammatory condition, yet he was never provided anti-inflammatory medication, not even aspirin, a well-known and readily available NSAID. Ar-nett wasn’t seeking an unconventional treatment; he sought medication that would reduce his pain and swelling and slow the progression of his RA. Although an inmate is not entitled to demand specific care and is not entitled to the best care possible, he is entitled to reasonable measures to meet a substantial risk of serious harm. Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir.1997). Arnett alleges that the medical defendants, despite their knowledge of his serious medical condition, ignored his request for effective treatment for over ten months. Arnett’s allegations that the medical defendants knowingly ignored his complaints of pain by continuing with a course of treatment that was ineffective and less efficacious without exercising professional judgment are sufficient to state a claim. See Berry, 604 F.3d at 441-42 (“Where [inmate] made a modest request for treatment ..., Dr. Butler’s obdurate refusal to alter [inmate’s] course of treatment despite his repeated reports that the medication was not working and his condition was getting worse, is sufficient to defeat her motion for summary judgment.”) (internal citations and quotation marks omitted). At this stage, we cannot say that Arnett’s allegations describe only simple negligence, as opposed to deliberate indifference to a worsening medical condition. See, e.g., Simek, 193 F.3d at 490 (plaintiff stated a claim where" }, { "docid": "23466661", "title": "", "text": "404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). McGowan set forth a plausible account of the facts showing how much delay he experienced, how often he and others asked Chapman to act, and what the consequences were of inaction. Delay is not a factor that is either always, or never, significant. Instead, the length of delay that is tolerable depends on the seriousness of the condition and the ease of providing treatment. See Grieveson v. Anderson, 538 F.3d 763, 778-80 (7th Cir. 2008) (guards could be liable for delaying treatment for painful broken nose by at least a day-and-a-half); Edwards, supra, 478 F.3d at 831 (two-day delay in treatment for open dislocated finger for no medical reason stated a claim against prison doctor for deliberate indifference); Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir.1997) (dismissal for failure to state a claim proper because six-day wait to see a doctor was not unreasonably long for infected cyst deemed not that severe); Cooper v. Casey, 97 F.3d 914, 916-17 (7th Cir.1996) (presented jury question “whether the plaintiffs were in sufficient pain to entitle them to pain medication within the first 48 hours after the beating”). McGowan’s complaint alleges with specificity a number of troubling delays in his treatment. He was forced to wait three months to see a dentist after he first complained of dental pain. That unexplained delay could support a deliberate-indifference claim if Chapman was aware of the severity of McGowan’s dental problems yet refused to approve a dental visit. See Hartsfield v. Colburn, 371 F.3d 454, 457 (8th Cir.2004); Boyd v. Knox, 47 F.3d 966, 969 (8th Cir.1995). And McGowan has alleged that Chapman knew as early as February 28, 2007, that McGowan needed to see an oral surgeon after the botched extraction, yet Chapman required McGowan to wait until April, when the contract oral surgeon was scheduled to come to the prison. The symptoms McGowan describes — painful swelling at the extraction site coupled with discharge — could support a finding that two months was too long to wait. Even when it was clear" }, { "docid": "19067908", "title": "", "text": "[his] hand.” The question before us is thus whether this statement is sufficient to identify an unconstitutional policy or practice maintained by Wexford. In light of our duty to construe Perez’s pro se complaint liberally, Arnett, 658 F.3d at 751, and to draw all reasonable inferences in his favor, Timlin, 771 F.3d at 997, we find that Perez sufficiently alleges that Wexford maintained a policy or practice that prevented nurses from stitching wounds or prescribing medication without a “doctor there.” We further infer from his complaint the allegation that Wexford maintained a policy or practice of not having a full-time doctor stationed at the prison at all times (or on call to suture open wounds as necessary). Because these alleged policies are capable of causing delays in treatment — which could result in a constitutional deprivation, McGowan, 612 F.3d at 640 — the claim against Wexford should have been allowed to proceed. 4. Administrator Martin Perez accuses Administrator Martin, the individual responsible for approving requests for inmates to be seen by outside doctors, of deliberate indifference for refusing to grant Perez’s referral request without explanation for four days. We find that Perez’s complaint states a claim for deliberate indifference against Administrator Martin. See McGowan, 612 F.3d at 641 (plaintiff stated plausible deliberate indifference claim against health administrator who “stalled in authorizing a referral to an outside surgeon”). As noted above, a delay in treatment may constitute deliberate difference if it exacerbates the inmate’s injury or unnecessarily prolonged his pain. McGowan, 612 F.3d at 640. “Even a few days’ delay in addressing a severely painful but readily treatable condition suffices to state a claim of deliberate indifference.” Smith, 666 F.3d at 1040. Here, Perez alleges that because Martin took four days to approve the request, the specialist was unable to suture the wound, causing him needless pain and suffering and worsening the injury. This suffices to state a claim against Martin. 5. The Grievance Defendants Perez’s complaint alleges deliberate indifference on the part of various non-medical prison officials (“the grievance defendants”) who were made aware of Perez’s predicament by way of" }, { "docid": "18084342", "title": "", "text": "refuses to take instructions from a specialist. Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011); Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999). Another is when he or she fails to follow an existing protocol. “While published requirements for health care do not create constitutional rights, such protocols certainly provide circumstantial evidence that a prison health care gatekeeper knew of a substantial risk of serious harm.” Mata v. Saiz, 427 F.3d 745, 757 (10th Cir. 2005). Another situation that might establish a departure from minimally competent medi cal judgment is where a prison official persists in a course of treatment known to be ineffective. Walker; 233 F.3d at 499 (citations omitted). For example, if knowing a patient faces a serious risk of appendicitis, the prison official gives the patient an aspirin and sends him back to his cell, a jury could find deliberate indifference even though the prisoner received some treatment. Sherrod, 223 F.3d at 612; see also Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005) (continuing to treat severe vomiting with antacids over three years created material fact issue of deliberate indifference); Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (holding Eighth Amendment claim may exist if medical treatment is so blatantly inappropriate as to evidence intentional mistreatment likely to seriously aggravate the prisoner’s condition); Kelley v. McGinnis, 899 F.2d 612, 616-17 (7th Cir. 1990) (per curiam). If a prison doctor chooses an “easier and less efficacious treatment” without exercising professional judgment, such a decision can also constitute deliberate indifference. Estelle, 429 U.S. at 104 n.10, 97 S.Ct. 285; Conley v. Birch, 796 F.3d 742, 747 (7th Cir. 2015) (material fact issue whether provision of only painkillers and ice to an inmate suffering from suspected fracture constituted deliberate indifference). While the cost of treatment is a factor in determining what constitutes adequate, minimum-level care, medical personnel cannot simply resort to an easier course of treatment that they know is ineffective. Johnson, 433 F.3d at 1013; Roe, 631 F.3d at 863 (although administrative convenience and cost may be permissible factors for correctional" }, { "docid": "14994365", "title": "", "text": "medical evidence to show that his condition had worsened because treatment was delayed. He is correct that a plaintiff need not furnish evidence to survive a challenge to a complaint’s legal sufficiency; a plaintiff need only show that the complaint contains the necessary allegations to state a claim. See, e.g., Arnett v. Webster, 658 F.3d 742, 746 n. 1 (7th Cir.2011); General Insurance Co. of America v. Clark Mall Corp., 644 F.3d 375, 377-78 (7th Cir.2011). But Smith does not allege that the delayed treatment exacerbated his injuries; rather, he contends that even if his condition did not worsen from the delay, deliberate indifference to prolonged, unnecessary pain can itself be the basis for an Eighth Amendment claim. This, too, is correct. See Arnett, 658 F.3d at 751. “[T]he length of delay that is tolerable depends on the seriousness of the condition and the ease of providing treatment.” McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir.2010) (citations omitted). Even a few days’ delay in addressing a severely painful but readily treatable condition suffices to state a claim of deliberate indifference. Compare Rodriguez v. Plymouth Ambulance Service, 577 F.3d 816, 832 (2009) (state employees could be liable for four-day delay in treating prisoner who complained that his IV was causing him serious pain); Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir.2008) (guards could be liable for delaying treatment of broken nose for a day and a half); Edwards v. Snyder, 478 F.3d 827, 830-31 (7th Cir.2007) (a plaintiff who painfully dislocated his finger and was needlessly denied treatment for two days stated a deliberate-indifference claim, reversing the district court’s dismissal) with Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir.1997) (no valid claim for six-day delay in treating a mild cyst infection). Here, Smith has alleged a serious, readily treatable condition that was ignored for almost a week. After an apparently unprovoked attack on him while he slept, he bled, vomited, sustained retinal or corneal damage, and endured dizziness and severe pain for five days as guards merely looked on. Although the evidence may not ultimately substantiate these allegations," }, { "docid": "19067901", "title": "", "text": "Carle Clinic. By the time he arrived, it was too late for the specialist to suture the wound. After visiting the Carle Clinic, Perez waited seven months (and had to file another grievance) before he was returned to the clinic for follow-up care. All told, while under Dr. Fenoglio’s care, Perez experienced a ten-month delay from the time of his injury until the time he received meaningful treatment in the form of surgery. Such unexplained delays could support a deliberate indifference claim if Dr. Fenog-lio was aware of the severity of Perez’s condition. See McGowan, 612 F.3d at 640. Here, Perez has alleged that Dr. Fenoglio knew as early as May 17, 2010, that Perez had a severe hand injury, which, in Dr. Fenoglio’s own estimation, required expert attention to treat. Dr. Fenoglio saw Perez on multiple occasions thereafter, during which Perez complained of ongoing symptoms (pain and discomfort, bleeding, swelling, and loss of functioning), which could support a finding that the delays in Perez’s treatment were unacceptable. Perez also alleges that Dr. Fenoglio’s failure to follow the recommendations of specialists at the Carle Clinic constituted deliberate indifference. According to Perez, doctors at the clinic recommended two courses of treatment: undergo surgery or get custom fitted for a Thermoplast spica splint and attempt to live with the injury for a time. Dr. Fenoglio allegedly ignored the recommendations, electing instead to wrap Perez’s wound in an Ace bandage. Allegations that a prison official refused to follow the advice of a medical specialist for a non-medical reason may at times constitute deliberate indifference. See Arnett, 658 F.3d at 753 (allegation that medical official refused to provide inmate with prescribed anti-inflammatory medication or substitute, despite his repeated complaints and worsening pain, stated claim for deliberate indifference); Gil v. Reed, 381 F.3d 649, 664 (7th Cir.2004) (allegation that prison doctor prescribed medication to inmate that specialist warned against gave rise to genuine issue of material fact precluding summary judgment); Jones v. Simek, 193 F.3d 485, 490-91 (7th Cir.1999) (evidence prison doctor refused to follow specialist’s orders precluded summary judgment); see also Holloway v. Delaware" } ]

[ { "docid": "4095919", "title": "", "text": "33 U.S.C. § 905(b). The quid pro quo received in return by the vessel was the extinguishment of the unseaworthiness doctrine. Id. § 905, by its terms, applies only to vessels and is not available as a defense to ACL against Bucyrus-Erie. . See note 3, supra. . There are only minor syntactic changes not here relevant. . While obviously there would be no action here if Zapico had not been killed and Millan injured, § 905(a) protects employers only from claims of persons “claiming under or through” employees covered by the Act. Ryan, supra, 350 U.S. at 129, 76 S.Ct. at 232 (emphasis supplied). See generally, Galimi v. Jetco, Inc., supra, 514 F.2d at 953-55 (discussion of similar exclusive remedy provision of the Federal Employees Compensation Act). . See generally United States v. Reliable Transfer Co., 421 U.S. 397, 411, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975); Cooper Stevedoring Co. v. Kopke, Inc., 417 U.S. 106, 110-11, 94 S.Ct. 2174, 40 L.Ed.2d 694 (1974); Brkaric v. Star Iron & Steel Co., 409 F.Supp. 516 (E.D.N.Y.1976). . The conclusion that Bucyrus-Erie breached its implied warranty that its product was fit for its ordinary purpose and use and should be held strictly liable in tort is implicit in the jury’s finding that Bucyrus-Erie negligently manufactured the truck-crane, although quixotically the jury exonerated Bucyrus-Erie on these theories of liability. . Edmonds v. Compagnie Generale Transatlantique, 558 F.2d 186 (4th Cir. 1977), which recognized an equitable credit doctrine, is urged upon me by both Bucyrus-Erie and ACL. Edmunds was a case in which a longshoreman, who received $20,000 in compensation benefits from his stevedore employer, sued the vessel for its negligence. The jury found damages of $100,000, found Edmunds 10% contributorily negligent and the stevedore 70% contributorily negligent. The district court reduced Edmund’s award by only $10,000, which represented the extent of his comparative negligence. The Fourth Circuit reversed, and held “that a more equitable distribution of liability, and one more consistent with the amended [A]ct, is achieved by limiting the vessel owner’s liability to the extent of its fault, in this case" } ]

[ { "docid": "22018375", "title": "", "text": "the ship liable to plaintiffs. Before the 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act, that condition itself would seemingly have constituted unseaworthiness. But unseaworthiness has been eliminated as a remedy for longshoremen by the addition in 1972 of what is presently codified as 33 U.S.C. § 905(b) of that Act. That subsection provides as follows: (b) In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter. The applicable section of the Report of the House Committee on Education and Labor, No. 92-1441, 92d Cong., 2d Sess., prepared in connection with the 1972 amendments is set forth in 3 U.S.Code Cong. & Admin.News, pp. 4701-05 (1972), and is appended to this opinion. It speaks clearly for itself, and establishes that land-based principles of law apply to longshoremen’s claims for damages against third parties and that a ship has no different liability to longshoremen employed to work aboard it by a" }, { "docid": "22284660", "title": "", "text": "76 S.Ct. 232, 100 L.Ed. 133 (1956), the employee could sue the vessel for unsea worthiness and the vessel could then demand indemnity from the stevedore/employer on the theory that it had breached an express or implied warranty of workmanlike performance to the vessel. The solution selected was to improve compensation benefits while at the same time making a vessel liable only for its own negligence rather than for unseaworthiness. To effect this result, section 905(b) was added to the Act: In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter. Our task here is to flesh out what Congress intended by its use of the phrase “negligence of the vessel”. For assistance we turn to the House Report and quote at some length. The Committee believes that where a longshoreman or other worker covered under this Act is injured through the fault of the vessel, the vessel should be liable for" }, { "docid": "19812647", "title": "", "text": "as to any material fact”. Rule 56(c) of Fed.R.Civ.Pr. Great Lakes only claims that section 905 of the Act is its absolute and total shield. The Act was originally enacted in 1927 and Section 905 was amended in 1972 by renumbering it as subsection 905(a) and without significant change. At the same time Congress added a new and supplementary subsection 905(b). Subsection 905(b) reads in pertinent part as follows: “In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed bv the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. * * * The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.” (Underscoring added.) It is thus clear that subsection 905(b) is limited in its applicability to cases involving an action against a “vessel” for injury caused by the negligence of the “vessel”. The term “vessel” is defined as follows in subsection (21) of section 902 of the Act: “The term ‘vessel’ means any vessel upon which or in connection with which any person entitled to benefits under this chapter suffers injury or death arising out of or in the course of his employment, and said vessel’s owner, owner pro hac vice, agent, operator, charter [sic] or bare boat charterer, master, officer, or crew member.” Plaintiff Gould has not sued either the vessel on" }, { "docid": "17634620", "title": "", "text": "F.2d at 990. In considering a motion for a new trial based on an allegation that a verdict is against the weight of the evidence, the trial court will be found to have abused its discretion only if it refused to grant a new trial when the verdict was against the clear weight of the evidence. Id. at 990 — 91. 6A Moore’s Federal Practice H 59.08[5] at 59-152 through 59-165 (2d ed. 1974). We do not find the verdict to have been against the clear weight of the evidence. Affirmed. . As we noted in Anderson, there appears to be no place in the law of admiralty for distinctions between licensees and invitees. Anderson v. Iceland S. S. Co., 585 F.2d 1142, 1146-47 n.5 (1st Cir. 1978). . Section 905(b) provides: In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be [null and] void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter. . See S. Rep. No. 92-1125, 82nd Cong.," }, { "docid": "15113338", "title": "", "text": "an abuse of discretion, we remand the case for a new trial. In so doing, we note that the issue of Bank Lines, Ltd.’s liability for the provision of a defective sweat batten should not be reliti-gated. REVERSED AND REMANDED. . Sweat battens are wooden dividers which are placed between the cargo and the hull of the ship to prevent condensation on the hull from damaging cargo. . Stevedores are hired by vessel owners to load and unload ships. The stevedore employs longshoremen to perform the loading and unloading operations. . 33 U.S.C.A. §§ 901-950 (West 1976 and Supp. I 1977). . 33 U.S.C.A. § 905(b) (West 1978) provides: In the event of injury to a person covered under this chapter caused by the negligence of the vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements of warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter. . H.R.Rep. No. 1441, 92nd Cong., 2d Sess., reprinted in U.S. Code Cong, and Ad. News, 1972, p. 4698. . Slaughter v. S. S. Ronde, Fyffers Group, Ltd., 390 F.Supp. 637 (S.D.Ga.1974), aff’d," }, { "docid": "22704018", "title": "", "text": "Justice White delivered the opinion of the Court. Respondent Santos, a longshoreman and an employee of respondent Seattle Stevedore Co., was injured while he was helping load the M/S Jalaratna, a vessel owned by petitioner Scindia Steam Navigation Co., Ltd. He later brought an action against Scindia pursuant to § 5 (b) of the Longshoremen’s and Harbor Workers’ Compensation Act (Act), as amended in 1972, which, as set forth in 33 U. S. C. § 905 (b), provides in relevant part as follows: “In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. . . . The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.” The District Court granted petitioner’s motion for summary judgment; the Court of Appeals, disagreeing with the District Court on both the facts and the law, reversed 'and' remanded for further proceedings. 598 F. 2d 480 (CA9 1979). We granted certiorari, 446 U. S. 934, because the Courts of Appeals are in considerable disagreement as to the meaning and application of § 905 (b). I For present purposes, we take the facts from the opinion of the Court of Appeals, which properly viewed the case in the light most favorable to Santos, against whom summary judgment had been granted. On December 10, 1972, Seattle Stevedore Co., pursuant to its undertaking with Scindia, was engaged in loading a cargo of wheat into a hold of the M/S Jalaratna. A winch, part of the ship’s gear, was" }, { "docid": "23065383", "title": "", "text": "A/S D/S Svendborg v. Panama Canal Company, 612 F.2d 968, 970 & n.2 (5th Cir. 1980). Therefore, it is likely that the waiver of sovereign immunity is operative in this case. . See H.R.Rep.No.92-1441, 92d Cong., 2d Sess. 4-8, reprinted in [1972] U.S.Code Cong. & Ad. News 4698, 4701-05; S.Rep.No.92-1125, 92d Cong., 2d Sess. 8-12 (1972); 118 Cong.Rec. 36265, et seq. (Oct. 14, 1972); 118 Cong.Rec. 36376, 36381-36388 (Oct. 14, 1972). . 33 U.S.C. § 905(b), added by the 1972 amendments to the LHWCA, provides: In the event of injury to a person covered under this Act caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 33 of this Act [33 U.S.C. § 933] and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this Act. 33 U.S.C. § 905(b) (emphasis added). . Section 905(b) is applicable “to a person covered under this Act.” 33 U.S.C. § 905(b). In discussing the abrogation of the unseaworthiness remedy the House Report refers to “employees covered under this Act,” “longshoremen or other workers covered under the Act” and “[pjersons to whom compensation" }, { "docid": "13337923", "title": "", "text": "of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter. Plaintiffs, however, assert that they can still sue their employer, Norfolk Shipbuilding, despite the fact that they received compensation benefits under the LHWCA, because the alleged negligence of defendant was “vessel owner occasioned negligence” and because § 905(b) specifically permits recovery for such negligence. Moreover, plaintiffs rely upon the case authority which permits an action against the compensating employer when “vessel owner occasioned negligence” is involved. In re Al lied Towing Corp., 416 F.Supp. 1207 (E.D. Va.1976), aff’d sub nom., Allied Towing Corp. v. Tatem, 580 F.2d 702 (4th Cir. 1978); Smith v. M/V Captain Fred, 546 F.2d 119 (5th Cir. 1977); Griffith v. Wheeling Pittsburgh Steel Corp., supra. See Edmonds v. Compagnie Generale Transatlantique, - U.S. -, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979). Accordingly, since this Court in In re Allied Towing Corp., supra, already has recognized that the compensating employer can be sued for vessel occasioned negligence, it need only determine whether the present action" }, { "docid": "21844370", "title": "", "text": "Section 905(b) of the LHWCA provides: In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter. 33 U.S.C. § 905(b). If the vessel owner and the stevedore employer are the same entity, as is the situation in the instant case with Becker being both owner of the barge and stevedore employer, the injured employee may still bring an action to recover damages — but only for vessel owner negligence, not for stevedoring negligence. Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S.Ct. 2541, 2547 n. 6, 76 L.Ed.2d 768 (1983); see also Smith v. M/V Captain Fred, 546 F.2d 119 (5th Cir.1977). The statute is silent on whether a third party may seek contribution from a vessel owner/stevedore employer for vessel own er negligence, and we have been unable to find a Fifth Circuit opinion deciding this issue. Thus, if the Plaintiff Tran had brought an action against Becker," }, { "docid": "1458839", "title": "", "text": "was for the statutory compensation payments. See 33 U.S.C. §§ 904, 905(a). In effect, the injured employee could get tort damages from his employer despite the statutory proscription against suing his employer directly. The 1972 Amendments made substantial changes to this framework. The statutory compensation benefits provided under the LHWCA were substantially increased. See Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 261-62, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977). At the same time, section 5(b) of the LHWCA, 33 U.S.C. § 905(b), was amended to overrule Sieracki and Ryan. See Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 262, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979). The longshoreman-employee’s right to recover for unseaworthiness was abolished; his right to recover from the vessel was preserved but was limited to an action for negligence; and the vessel owner’s right to indemnity from the stevedore was abolished. See Scindia, 451 U.S. at 165, 101 S.Ct. 1614. Under these amendments, section 905(b) provided in relevant part: In the event of injury to a person covered under this Act caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party ... and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedor-ing services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing shipbuilding or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive .of all" }, { "docid": "13975071", "title": "", "text": "negligence and calculation of damages. . The District Court referred to Smith’s responsibility for his own demise as “contributory negligence.” Strictly speaking, however, the District Court applied the appropriate doctrine of comparative negligence, which does not absolutely bar a plaintiff from bringing an action based on an injury for which he was partly responsible, but rather requires a reduction in damages in proportion to the plaintiff’s fault. . 33 U.S.C. § 905(b) provides: In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of Section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter. . Congress originally passed the LHWCA to provide a comprehensive compensation system for land-based workers injured in the course of maritime employment. Employers such as stevedores who employ land-based personnel were to be relieved from damage liability for work-related injuries. In return, the employers would be obligated to contribute to a compensation system that would provide benefits to injured employees according to a statutory schedule. However, the compensation scheme" }, { "docid": "841266", "title": "", "text": "aboard the vessel. Italia Societa Per Azioni Di Navigazione v. Oregon Stevedoring Co., 1964, 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732. In an industry where insurance is almost universal, the tort claim against the owner was defended by its insurer; the insurer sought indemnity from the stevedore, to be borne by the stevedore’s insurer; and the total cost of insurance was passed on to the vessel in the form of higher costs for stevedoring services. The inequities to which this involute pattern led, and its ultimate cost, resulted in a series of compromises that comprised part of the 1972 amendments to the LHWCA. Compensation benefits to the injured worker were increased both directly by higher weekly benefits and indirectly in a number of other aspects. While section 905(b) preserved the injured worker’s action against the vessel and its owner if negligence on the part of vessel personnel could be shown, the action against the vessel and its owner on the basis of unseawoi’thiness was eliminated. In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void.....The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter. 33 U.S.C.A. § 905(b), as amended Oct. 27, 1972, Pub.L. 92-576, § 18(a), 86 Stat. 1263. (Emphasis supplied.) Since liability of the vessel interests would be based entirely on their own fault, and their liability without fault had thus been eliminated, the implied Ryan indemnity of the employer was eradicated by the underlined phrase," }, { "docid": "8838435", "title": "", "text": "Act, as amended, must be taken into consideration. The subsection provides: (b) In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel, except remedies available under this chapter. In Anuszewski v. Dynamic Mariners Corp., 540 F.2d 757 (4 Cir. 1976), cert. denied, 429 U.S. 1098, 97 S.Ct. 1116, 51 L.Ed.2d 545 (1977), we held that, subsequent to the 1972 Amendments to the Act, the shipowner has no nondelegable duty to provide a longshoreman working aboard a vessel with a safe place to work. We stated: The legislative history clearly supports the conclusion of the district court that the 1972 Amendments eliminated the absolute and non-delegable duty of a vessel to provide longshoremen a safe place to work. 540 F.2d at 758. We quoted with approval excerpts from the legislative history in which Congress clearly evidenced its intent to eliminate the doctrine of unseaworthiness and to place a longshoreman injured on board a vessel in the same position he" }, { "docid": "18829702", "title": "", "text": "391. The amendment postponed the assignment- by operation of law until six months after the acceptance of compensation under an award. Rodriguez, supra, 451 U.S. at 610, 101 S.Ct. at 1954. The 1972 amendments did not substantially change the provisions of this section. Cella v. Partenreederei MS Ravenna, supra, 529 F.2d at 18, n. 3. . As of 1972, coal mining was the only vocation more dangerous than longshoring. Johnson v. A/S Ivarans Rederi, 613 F.2d 334, 339, n. 5 (1st Cir.1980). . 33 U.S.C. § 905(b) states: In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter. . See generally Generaly Dynamics Corporation v. Sacchetti, 681 F.2d 37, 38 (1st Cir.1982) (“employees” covered by LHWCA). . If there is any doubt, the word “and” includes the owner pro hac vice, charter, or bare-boat charterer in the definition of “vessel”. Swans v. United States Lines, Inc., 407 F.Supp. 388, 393 (E.D.Pa.1975). Vessel" }, { "docid": "15510936", "title": "", "text": "results from the injury, may elect to claim compensation under this chapter, or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee. That section was amended Oct. 27, 1972, by Pub.L.No.92-576, § 18(a), 86 Stat. 1263, to become, with minor changes, § 905(a); § 905(b), which reads as follows, was added: In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such actions shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter. In addition to subsection (b) which altered the court-made no-fault law of unseaworthiness, and because of such change, Pub.L.No.92-576 also increased the benefits available under the LHWCA. ■ See H.R.Rep.No.92-1441, 92d Cong., 2d Sess. (1972). Since" }, { "docid": "14489174", "title": "", "text": "such benefits should be raised so long as this compensation law was not the exclusive remedy for an injured worker. It has been the feeling of most employers that while they were willing to guarantee payment to an injured worker regardless of fault, they would only do so if the right to such payment was the exclusive remedy and they would not be subject to additional law suits because of that injury.” S.Rep. No. 92-1125, 92d Cong. 2d Sess., 4-5 (1972). See also H.R.Rep. No. 92-1441, 92d Cong., 2d Sess., 4-8 (1972), U.S.Code Cong. & Admim.News, p. 4698. There can be no doubt that Congress achieved its purpose of eliminating increased liability to the employer due to the seaworthiness doctrine. Congress amended the exclusivity section of the Act by adding subsection 5(b), 33 U.S.C. § 905(b), which provides as follows: The amendment eliminates suits against the vessel based on the doctrine of seaworthiness by persons covered under the Act. In addition, agreements to indemnify or hold harmless the vessel are expressly prohibited. Furthermore, the Yaka case, allowing suit by the longshoreman when directly employed by the vessel, is overruled by providing that the vessel in that circumstance is entitled to the same exclusive liability as the stevedore is to his employees. “In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if" }, { "docid": "20317418", "title": "", "text": "person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void____ If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter. 33 U.S.C. § 905(b). . Section 2(21) of the LHWCA defines the term \"vessel” as any vessel upon which or in connection with which any person entitled to benefits under this chapter suffers injury or death arising out of or in the course of his employment, and said vessel’s owner, owner pro hac vice, agent, operator, charter or bare boat charterer, master, officer, or crewmember. 33 U.S.C. § 902(21). . The LHWCA itself is silent as to the scope of the vessel's liability under Section 5(b), Congress having left that standard of care to be developed by the courts through the \"application of accepted principles of tort law and the ordinary process of litigation.” Scindia, 451 U.S. at 166 n. 13, 101 S.Ct. at 1621 n. 13 (quoting S.Rep. No. 92-1125, 92d Cong., 2d Sess. 11 (1972)). . The Court declined to adopt the land-based standards of Sections 343 and 343A of the Restatement (Second) of Torts in construing Section 5(b) of the LHWCA. 451 U.S. at 168 n. 14, 101 S.Ct. at 1622 n. 14. Until Scindia there had been a split among the" }, { "docid": "11818498", "title": "", "text": "905(b) cases would result in the increased litigation that Congress sought to avoid by the 1972 Amendments, which inserted this wording in 33 U.S.C. § 905(b): “(b) In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. . . . The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except [the right of the employer of the longshoreman to recover compensation paid from a vessel found negligent under § 905(b). See 33 U.S.C. § 933(b).]” (Emphasis supplied). These Amendments inserted this language in 33 U.S.C. § 905(a): “§ 905. Exclusiveness of liability (a) The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative . . . and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death. . . . ” The Senate Report on P.L. 92-576 at 4-5, 9 and 11 uses this language: “The social costs of these law suits, the delays, crowding of court calendars and the need to pay for lawyers’ services have seldom resulted in a real increase in actual benefits for injured workers. “For a number of years representatives of the employees have attempted to have the benefit levels under the Act raised so that injured workers would be properly protected by the Act. At the same time, employer groups indicated their willingness to increase such payments but indicated they could do so only if the Longshoremen’s and Harbor Workers’ Compensation Act were to again become the exclusive remedy against the stevedore as had" }, { "docid": "19709350", "title": "", "text": "Atlas Offshore Boat Serv., Inc., 403 F.Supp. 920 (D.C.La.1975); Gould v. General Mills, Inc., 411 F.Supp. 1181 (W.D.N. Y.1976). The LHWCA, 33 U.S.C. § 905(b) provides in pertinent part: (b) In the event of injury to a person covered under this Act caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 33 of this Act [33 USCS § 933], and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed to provide shipbuilding, repairing, or breaking services and such person’s employer was the owner, owner pro hac vice, agent, operator, or charterer of the vessel, no such action shall be permitted, in whole or in part or directly or indirectly, against the injured person’s employer (in any capacity, including as the vessel’s owner, owner pro hac vice, agent, operator, or charterer) or against the employees of the employer. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this Act. (Emphasis added) Preliminarily, this Court must determine whether Section 905(b) applies to non-vessels. The Second Circuit in Zapico v. Bucyrus Erie Co., 579 F.2d 714, 721 (2nd Cir.1978) held that § 905(b) explicitly cuts off indemnity only to a vessel. The court in Zapico, after reviewing the legislative history, elaborated further: There is no assurance ... that if Congress had considered non-vessels, it would have cut them off as well in order to make compensation payments the" }, { "docid": "6680230", "title": "", "text": "exceeds the sum or value of $50,000, exclusive of interest and costs, and is between— (1) citizens of different States; B. LHWCA CAUSES OF ACTION 2. Subsection 905(b) of the Longshore and Harbor Workers’ Compensation Act provides that: In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide steve-doring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed to provide shipbuilding, repairing, or breaking services and such person’s employer was the owner, owner pro hac vice, agent, operator, or charterer of the vessel, no such action shall be permitted, in whole, or in part or directly or indirectly, against the injured person’s employer (in any capacity, including as the vessel’s owner, owner pro hac vice, agent, operator, or charterer) or against the employees of the employer. The liability of the vessel under this subsection shall not be. based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter. 33 U.S.C. § 905(b). 3. Under the LHWCA, an injured employee may bring an action for damages against a “vessel,” which is defined as follows: Unless the context requires otherwise, the term “vessel” means any vessel upon which or in connection with which any person entitled to benefits under this chapter suffers injury or death arising out of or in the course of his employment, and said vessel’s owner, owner pro hac vice," } ]

[ { "docid": "22721441", "title": "", "text": "on fundamental rights calls for close judicial scrutiny. Estes v. Texas, 381 U. S. 532 (1965); In re Murchison, 349 U. S. 133 (1955). Courts must do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle, and common human experience. The potential effects of presenting an accused before the jury in prison attire need not, however, be measured in the abstract. Courts have, with few exceptions, determined that an accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption so basic to the adversary system. Gaito v. Brierley, 485 F. 2d 86 (CA3 1973); Hernandez v. Beto, supra; Brooks v. Texas, 381 F. 2d 619 (CA5 1967); Commonwealth v. Keeler, 216 Pa. Super. 193, 264 A. 2d 407 (1970); Miller v. State, 249 Ark. 3, 457 S. W. 2d 848 (1970); People v. Shaw, 381 Mich. 467, 164 N. W. 2d 7 (1969); People v. Zapata, 220 Cal. App. 2d 903, 34 Cal. Rptr. 171 (1963), cert. denied, 377 U. S. 406 (1964); Eaddy v. People, 115 Colo. 488, 174 P. 2d 717 (1946). The American Bar Association’s Standards for Criminal Justice also disapprove the practice. ABA Project on Standards for Criminal Justice, Trial by Jury § 4.1 (b), p. 91 (App. Draft 1968). This is a recognition that the constant reminder of the accused’s condition implicit in such distinctive, identi fiable attire may affect a juror’s judgment. The defendant’s clothing is so likely to be a continuing influence throughout the trial that, not unlike placing a jury in the custody of deputy sheriffs who were also witnesses for the prosecution, an unacceptable risk is presented of impermissible factors coming into play. Turner v. Louisiana, 379 U. S. 466, 473 (1965). That such factors cannot always be avoided is manifest in Illinois v. Allen, 397 U. S. 337 (1970), where we expressly recognized that “the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant . . . ,” id., at 344; yet" } ]

[ { "docid": "5767080", "title": "", "text": "on the merits. . 1936 N.Y.Laws, ch. 390. . The Supreme Court has also repudiated the notion that merely because the legislature could criminalize an act it may make that act presumptive evidence of a criminal offense. Tot v. United States, supra, 319 U.S. at 472, 63 S.Ct. 1241; Leary v. United States, supra, 395 U.S. at 34, 37, 89 S.Ct. 1532; United States v. Romano, 382 U.S. 136, 142-44, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965); Turner v. United States, supra, 396 U.S. at 407-08 n. 8, 90 S.Ct. 642. Here, therefore, it does not matter whether New York might have made presence in a car with a gun criminal. . The Court also raised the possibility that a presumption satisfying the “more likely than not” test might also be required to satisfy the criminal “reasonable doubt” standard if proof of the crime charged or an essential element thereof depended upon the presumption’s use, but declined to reach the issue because the presumption at issue failed to meet even the less stringent test. 395 U.S. at 36 n. 64, 89 S.Ct. 1532. We decline to reach this issue in this case for the same reason; we hold that New York’s presumption does not satisfy the “more likely than not” test. . Later, in Barnes v. United States, 412 U.S. 837, 841-43, 845 n. 8, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973), the Court reviewed the standards governing statutory presumptions and made them broadly applicable to so-called “common law inferences” — permissible inferences charged by a trial judge without specific statutory authorization. . The jury in this case was charged with this definition. . In fact, during the trial of this case, the jury was charged pursuant to parallel presumptions that they could infer that all four occupants of the car had possession of heroin and a machine gun found in the trunk of the car, see note 3, supra, even though a key to the trunk was never recovered from any of them. The jury acquitted all of the defendants on these counts. . In People v. Leyva, 38" }, { "docid": "15098724", "title": "", "text": "trial proceeded that each defendant was to be judged separately. The dismissal of the RICO count as to Vargas could only have highlighted for them that there must be an individualized assessment of the evidence. And the court’s instructions on this was clear and complete. Furthermore, “[n]either the number of counts nor the number of defendants was so large as to give rise to concern that the jury could not differentiate among them.” Id. at 5. Nor can we ignore the jury’s verdict which reflects a careful dissection of the evidence as it applied to each defendant. Although we do not think that the issue of prejudicial join-der, either under Rule 8 or 14, should hinge on whether the jury returned a discriminating verdict, that is a factor to be taken into consideration. See United States v. Richman, 600 F.2d 286, 299-300 (1st Cir. 1979). We find no abuse of discretion in the court’s refusal to order a severance and, therefore, no violation of Federal Rule of Criminal Procedure 14. The Seating Arrangement This claim borders on the frivolous. At the start of the trial the district court directed the defendants to sit together in the first row of the spectator’s section of the courtroom and excluded all others from that area. The only defendant to object to this was Vargas. His first argument is that the district court established “a prisoner’s row” similar to the use of the dock in Massachusetts which was criticized by us in Walker v. Butterworth, 599 F.2d 1074, 1080-81 (1st Cir.), cert. denied, 444 U.S. 937, 100 S.Ct. 288, 62 L.Ed.2d 197 (1979). We think the analogy inapt; the dock is a four-foot high box in which the accused is isolated. In Walker we pointed out that its use might be analogized to wearing prison clothes during a trial, which was held unconstitutional in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). Here, the defendants sat in the front row of the spectator’s area of the courtroom, hardly a place calculated to strip an accused of his presumption of" }, { "docid": "12815241", "title": "", "text": "as it relied on certain statutory presumptions. The defendants, after conviction, did not raise on appeal the validity of the presumptions concerning the possession of certain drugs because existing case law indicated it would be futile to do so. Thereafter the Supreme Court held the presumptions unconstitutional in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), and Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). The district courts found that Leary and Turner had made a change in the law and that it applied to the previously adjudged convictions of the petitioners in the Liguori case, and, therefore, the § 2255 motions to vacate the judgments of conviction were granted. In the present case the change in the law from that pronounced by the district court at Loschiavo’s trial and the decision of this court in Del Toro meant that Loschiavo was convicted for a federal offense that did not exist. The Government insists that he be charged with serving his prison sentence nevertheless. We consider that what Judge Medina said, writing for the court in Liguori, is, by analogy, applicable to the present case. “We think these cases now before us can be disposed of by applying the simple and universal rule that a judgment in a criminal case in which the prosecution has offered and the record discloses no proof whatever of various elements of the crime charged has a fatal constitutional taint for lack of due process of law. As we said in our in banc decision in United States ex rel. Angelet v. Fay, 333 F.2d 12, 16 (2d Cir. 1964), aff’d, 381 U.S. 654, 85 S.Ct. 1750, 14 L.Ed.2d 623 (1965), the question of whether to grant retrospectivity in this type of case should be decided with ‘precisely the same operations of the judicial process as does the development of a body of decisional law in any other field.’ We must examine the principles involved in the constitutional ruling under consideration and decide whether, upon ‘considerations of convenience, of utility, and of the" }, { "docid": "12815240", "title": "", "text": "Davis and Travers. The decision in Del Toro, which was filed sometime after Loschiavo had fully exhausted his search for relief on direct appeal, brought about a marked change in Loschiavo’s situation. He had bribed exactly the same man, Morales, who occupied exactly the same position relative to the HUD project as Morales did when he was bribed by Del Toro. It is true that up the time Del Toro was decided, Loschiavo could not have made a collateral attack on his conviction because of the holdings in Sunal, supra, and its progeny. But after Del Toro, with a formal judgment of this court declaring that Morales was not a federal public official at any of the times involved, then it was clear that Loschiavo was being imprisoned for something that was not a federal criminal offense. The circumstances were very much akin to those in United States v. Liguori, supra, in which several persons were convicted of dealing unlawfully in drugs, although the Government had failed to prove some essential elements of the offense, as it relied on certain statutory presumptions. The defendants, after conviction, did not raise on appeal the validity of the presumptions concerning the possession of certain drugs because existing case law indicated it would be futile to do so. Thereafter the Supreme Court held the presumptions unconstitutional in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), and Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). The district courts found that Leary and Turner had made a change in the law and that it applied to the previously adjudged convictions of the petitioners in the Liguori case, and, therefore, the § 2255 motions to vacate the judgments of conviction were granted. In the present case the change in the law from that pronounced by the district court at Loschiavo’s trial and the decision of this court in Del Toro meant that Loschiavo was convicted for a federal offense that did not exist. The Government insists that he be charged with serving his prison sentence" }, { "docid": "23236878", "title": "", "text": "plain error when the defendant fails to object at trial. United States v. Geston, 299 F.3d 1130, 1134-35 (9th Cir.2002). We find plain error only when there is: 1) error; 2) that was clear or obvious; 3) that affected substantial rights; and 4) that seriously affected the fairness, integrity, or public reputation of the judicial proceedings. United States v. Vences, 169 F.3d 611, 613 (9th Cir.1999). Washington compares the prosecution’s references to his custodial status during Newell’s testimony to cases in which defendants were required to wear prison garb during their trials. When defendants are forced to wear prison garb to trial, jurors “may speculate that the accused’s pretrial incarceration, although often the result of his inability to raise bail, is explained by the fact he poses a danger to the community or has a prior criminal record.” Estelle v. Williams, 425 U.S. 501, 518, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (Brennan J., dissenting). This may create a subtle prejudice undermining the presumption of innocence. Id. at 504-05, 96 S.Ct. 1691 (majority opinion). The “constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment” and no state policy is served by compelling a defendant to dress in prison clothing before the jury. Id. As with prison garb, when a jury is informed that the defendant remained in carcerated while waiting for trial, this can undermine the presumption of innocence. However, the impact of referring to a defendant’s incarceration is not constant as it is with prison garb. Moreover, although no state purpose is served by requiring defendants to wear prison garb in front of a jury, in Washington’s case there was a state purpose for the reference to incarceration. Although Washington claims that the prosecution asked its questions in bad faith solely to place the fact of Washington’s pre-trial incarceration before the jury, the record indicates otherwise. There was an obvious and relevant reason why the prosecution mentioned that Washington was in prison; Washington’s custodial status provided Newell with an incentive to inform the FBI of Washington’s alibi as soon as possible." }, { "docid": "5484800", "title": "", "text": "minor, was felt to give officers time to reach an escaping or disruptive defendant, and was further justified as a possible screen that would keep the jurors from seeing any shackles that might be required. 393 N.E.2d at 908. Thus the Supreme Judicial Court has authorized continued use of the dock in limited circumstances where security requires, but not otherwise. That decision came, of course, nine years after petitioner’s trial. At that time, defendants commonly occupied the dock, though individual judges, upon request, might allow them to sit with counsel. The concerns over use of the dock expressed by this court in Walker v. Butterworth would appear to be satisfied by the policy announced in Commonwealth v. Moore. And given the specific and supported security reasons stated by the Superior Court judge for use of the dock in the trial which is the subject of the instant proceeding, we need proceed no further. Even assuming that compelled use of the dock, without a security motive, could be deemed analogous to compelled appearance in prison garb, see Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1975), it is clear that a trial court may employ security devices in the presence of the jury upon a proper showing of necessity. Id., at 505, 96 S.Ct. at 1693; Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Thus to the extent the dock, unlike prison garb, served a legitimate security purpose, it would not be unconstitutional. Here the district court made supported findings, based on the state record, that defendant’s pretrial behavior had been “erratic and highly unstable, to say the least.” Instances of violent and possibly self-destructive conduct are mentioned. Defendant had been committed for psychiatric examination and had considered a plea of insanity. While petitioner’s attorney argued that less restrictive means of restraint were available, the district court found he had suggested none, and the district court disagreed that any were available. The dock itself, which is similar in appearance to the enclosures often occupied by clerks and court attendants, is scarcely as" }, { "docid": "15098725", "title": "", "text": "borders on the frivolous. At the start of the trial the district court directed the defendants to sit together in the first row of the spectator’s section of the courtroom and excluded all others from that area. The only defendant to object to this was Vargas. His first argument is that the district court established “a prisoner’s row” similar to the use of the dock in Massachusetts which was criticized by us in Walker v. Butterworth, 599 F.2d 1074, 1080-81 (1st Cir.), cert. denied, 444 U.S. 937, 100 S.Ct. 288, 62 L.Ed.2d 197 (1979). We think the analogy inapt; the dock is a four-foot high box in which the accused is isolated. In Walker we pointed out that its use might be analogized to wearing prison clothes during a trial, which was held unconstitutional in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). Here, the defendants sat in the front row of the spectator’s area of the courtroom, hardly a place calculated to strip an accused of his presumption of innocence in the eyes of the jury. The defendants were no more isolated than they would have been if seated with their attorneys, as is ordinarily the case. As to the argument that the seating arrangement suggested to the jurors that they should infer the guilt of all from the guilt of one, we only remark that the defendants had to be seated somewhere, and from the start of the trial the jury knew that all of them, including Vargas, were charged with conspiracy. If the jury received a suggestion of guilt by association, and their verdict belies this, it was the result of the conspiracy charge, not the seating arrangement. Moreover, this is a matter best left to the discretion of the trial court. How to arrange the seating for defendants and counsel depends upon such a variety of factors, e. g., the size of the courtroom, the number of spectators, the number of defendants and lawyers, acoustics, security provisions, etc., that we would be loathe to interfere unless there was a clearcut abuse" }, { "docid": "22721462", "title": "", "text": "(1970). Mr. Justice Brennan, with whom Mr. Justice Marshall concurs, dissenting. I dissent. The Court’s statement that “[t]he defendant’s clothing is so likely to be a continuing influence throughout the trial that ... an unacceptable risk is presented of impermissible factors” affecting the jurors’ judgment, thus presenting the possibility of an unjustified verdict of guilt, ante, at 505, concedes that respondent’s trial in identifiable prison garb constituted a denial of due process of law. The judgment setting aside respondent’s conviction is nevertheless reversed on the ground that respondent was not compelled by the State to wear the prison garb. The Court does not — for on this record plainly the Court could not — rest the reversal on a finding that respondent knowingly, voluntarily, and intelligently consented to be tried in such attire, and thus had waived his due process right. Johnson v. Zerbst, 304 U. S. 458 (1938). Rather, for the first time, the Court confines due process protections by defining a right that materially affects the fairness and accuracy of the fact-finding process in terms of state compulsion, a concept which, although relevant in the context of the Fifth Amendment’s privilege against self-incrimination, is simply inapposite to constitutional analysis concerning due process in criminal proceedings. The end result of this definitional approach is to impute the effect of waiver to the failure of respondent or his counsel to apprise the. trial judge of respondent’s objection to being tried in prison garb. This not only results in an illogical delineation of the particular right involved in this case, but also introduces into this Court’s jurisprudence a novel and dangerously unfair test of surrender of basic constitutional rights to which I cannot agree. I The Court concedes that respondent was denied due process of law: there is a due process violation if the State denies an accused’s objection to being tried in such garb, ante, at 504-505, 505, 512, 512-513, and as will be developed, there is no relevant constitutional difference concerning that due process right if the accused has not objected to the practice. One of the essential due" }, { "docid": "22443366", "title": "", "text": "attire may affect a juror’s judgment” and impair the presumption of innocence, which is “a basic component of a fair trial under our system of criminal justice.” Id. at 503, 504-05, 96 S.Ct. at 1692-93, 1693-94. The presumption of innocence, however, no longer applies in the penalty phase of a bifurcated trial. At the penalty phase, the defendant stands convicted. His condition as a prisoner is no surprise to the jury, which just found him guilty. Prison clothing cannot be considered inherently prejudicial when the jury already knows, based upon other facts, that the defendant has been deprived of his liberty. See Estelle v. Williams, 425 U.S. at 507, 96 S.Ct. at 1694 (recognizing that “[n]o prejudice can result from seeing that which is already known”) (quotations and citations omitted); United States v. Stewart, 20 F.3d 911, 916 (8th Cir.1994) (holding that when circumstances permit shackling defendant during trial, compelling defendant also to wear prison clothing is not inherently prejudicial because his condition as a prisoner is already apparent to the jury); United States ex rel. Stahl v. Henderson, 472 F.2d 556, 556-57 (5th Cir.) (holding that, where defendant was charged with murdering another prisoner while confined in prison, no prejudice resulted from trying him in jail clothes), cert. denied, 411 U.S. 971, 93 S.Ct. 2166, 36 L.Ed.2d 694 (1973). We conclude the fact Duckett was compelled to wear prison clothing at his sentencing hearing could not have undermined the fairness of that proceeding, because the jury already knew — based on the trial in which it had participated and the verdict it had rendered — Duckett was a convicted murderer. B. Shackles The analysis regarding the constitutionality of shackling is different. Unlike the Supreme Court’s reasoning regarding prison clothes, its rationale in shackling cases has not been grounded only in the presumption of innocence. See Elledge v. Dugger, 823 F.2d at 1451 (recognizing that “the Supreme Court has not bottomed the prohibition against shackling on the presumption of innocence alone”). But see id. at 1454 (Edmondson, J., concurring in part and dissenting in part) (arguing that the presumption of" }, { "docid": "14732934", "title": "", "text": "could not determine whether the shackling warranted habeas relief without knowing what the jurors saw. See id. at 1462. Therefore, we remanded the petition for an evi-dentiary hearing “to determine what the jurors saw and whether it was so inherently prejudicial] that it threatened the fairness of the trial.” See id. A magistrate judge held an evidentiary hearing in which testimony was taken from nine jurors, Rhoden’s state court-appointed investigator, the deputy district attorney, and a law student with the Post-Conviction Justice Project. Five jurors testified that they saw the restraints at some point during the proceedings, and that the issue of shackling was not mentioned during deliberations. The magistrate judge concluded that the shackles were visible to the jurors as they sat in the jury box, but made little actual impression on them. Therefore, the magistrate concluded that Rhoden was not inherently prejudiced by the trial court’s requirement that he remain shackled in the presence of the jury. The district court adopted his report. This timely appeal followed. DISCUSSION The leading Supreme Court case on shackling during trials is Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). In Allen, the Court confronted the dilemma of a contumacious defendant who nevertheless had a Sixth Amendment right to be present at his own trial. Considering the alternative of binding and gagging the defendant in order to conduct the trial, the Court wrote that “no person should be tried while shackled and gagged except as a last resort” because of the distinct possibility of “a significant effect on the jury’s feelings about the defendant.” Id. at 344, 90 S.Ct. 1057. Likewise, in Estelle v. Williams, 425 U.S. 501, 504-05, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), the Court noted that where a defendant is forced to wear prison clothes when appearing before the jury, “the constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment.” As the Supreme Court developed in Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), shackling, like prison clothes, is" }, { "docid": "3526864", "title": "", "text": "presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) & (2); Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A decision is contrary to clearly established federal law if “the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13, 120 S.Ct. 1495. An application of federal law is unreasonable if “the state court identifies the correct governing legal principle from [the] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. Ill Chavez argues that the inadvertent activation of his stun belt in the presence of the jury denied him the presumption of innocence. “The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). The physical appearance of a defendant while in the presence of the jury may adversely affect the presumption of innocence. Id. at 504, 96 S.Ct. 1691 (noting that defendant’s appearance before the jury may “affect a juror’s judgment” because prison clothing serves as a “constant reminder of the accused’s condition”). Courts do, however, have an obligation to “protect the court and its processes, and to attend to the safety and security of those in the courtroom.” United States v. Nicholson, 846 F.2d 277, 279 (5th Cir.1988) (upholding use of plainclothes deputies sitting next to defendant at trial). Thus, the Supreme Court has held that binding and gagging an “obstreperous defendant” is permissible when necessary to maintain courtroom order. Illinois v. Allen, 397 U.S. 337, 343-44, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). In addition, a defendant may be shackled “to preserve the dignity of the trial and to secure the safety of its participants.” Marquez v. Collins, 11 F.3d 1241, 1244 (5th Cir.1994); see also Fountain" }, { "docid": "14992043", "title": "", "text": "statute created a presumption or prima facie evidence of intent to commit burglary; that this presumption did not deny due process, equal protection, an accused’s right to trial by jury, or any other constitutional guarantee; and that the presumption cut off no defense and constituted no obstacle to a contest of all issues of fact. The Virginia court said that the presumption did no more than create a rule of evidence that shifted the burden of going forward to the defendant, but did not shift the burden of ultimate proof or deprive a defendant of his right to have the jury instructed on the presumption of evidence. Recognizing Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904 (1925), as the definitive Supreme Court authority, the Virginia court placed its rejection of the constitutional claims upon its conclusion that a statute may constitutionally create such a presumption where “there [is] some rational connection between the fact proved and the ultimate fact to be established.” 75 S.E.2d at 485. Nance made no further analysis of the constitutionality of the presumption. It merely adopted the construction of the statute placed on it in Burnette. We have no occasion to consider whether the Virginia court correctly applied Yee Hem, because the Supreme Court of the United States decided Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973), and Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), as well as other pertinent cases after the decision in Burnette. Leary and Barnes refine and, at least arguably, alter the test of validity set forth in Yee Hem. In Leary, the basic test of invalidity was stated to be whether “it can ... be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” 395 U.S. at 36, 89 S.Ct. at 1548. Barnes, in an attempt to harmonize Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610.(1970); United States v. Romano," }, { "docid": "9540727", "title": "", "text": "of classified information, the court first sustained objections on the ground of relevancy. The court reached this decision after conducting an in camera hearing. Subsequently, when the issue as to importation arose, the court reconsidered and struck the coast guard officers’ testimony pertaining to the locations of the vessel at sea as in any way identifying the Fiesta, except testimony as to its location on August 9th. The court instructed the jury that the stricken testimony could not be considered by them. The striking of the testimony obviously benefitted the defendants and we believe that this ruling and the curative charge provided the defendants with an adequate remedy. See United States v. Porter, 701 F.2d 1158, 1162 (6th Cir.1983) (whenever defendant is prevented by order from causing disclosure of classified information, the court may in the interests of justice order “such other action, in lieu of dismissing the indictment .. .,” as it determines appropriate). IV. The defendants claim that they are entitled to a new trial because on two occasions some of the jurors inadvertently saw one or more of the defendants in handcuffs while they were outside the courtroom. The Supreme Court noted in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), that “no person should be tried while shackled and gagged except as a last resort.” Id. at 344, 90 S.Ct. at 1061. This court has recently held that it is unconstitutional to confine a defendant at trial to a “prisoner’s dock” in the absence of special security needs. See Young v. Callahan, 700 F.2d 32, 37 (1st Cir.), cert. denied, — U.S. —, 104 S.Ct. 194, 78 L.Ed.2d 170 (1983). These cases, which serve to guarantee that a defendant’s presumption of innocence will not be eroded at trial by the presence of physical restraint, deal with problems quite different from the one raised in this case. The defendants in the case sub judice were not shackled and gagged in the courtroom; they were handcuffed while transported to and from the courthouse. The jurors were not repeatedly reminded of the defendants’ confinement;" }, { "docid": "11011426", "title": "", "text": "of Munoz, the prosecutor inquired whether he had had an opportunity to review, over the last “year or two,” the audiotapes recorded by the Cl. Munoz said no, and then launched into a two to three minute monologue detailing the difficulties he and Villabona had had in obtaining the tapes, and equipment to play them on, at the various prisons where the two had resided while in pretrial detention. Villabona contends that the district court erred in not granting a mistrial after Munoz’s reference to their joint year and one-half pretrial incarceration, as Villabona’s presumption of innocence was impermissibly compromised by that comment. See Estelle v. Williams, 425 U.S. 501, 503-05, 96 S.Ct. 1691, 1692-93, 48 L.Ed.2d 126 (1976) (presumption of innocence may be impaired, and due process right to fair trial violated, where accused is compelled to attend trial while dressed in clearly identifiable prison clothing); United States v. Harris, 703 F.2d 508, 509-11 (11th Cir.1983) (due process violated where defendant was compelled to dress in prison clothing during jury voir dire). It is, of course, of no import that the fact of Villabona’s incarceration was made known to the jury directly rather than, as in Estelle, inferentially. Estelle, however, is distinguishable for another reason. In that case, the Supreme Court emphasized that the prison clothing was a “constant reminder of the accused’s condition,” “a continuing influence throughout the trial” that presented an “unacceptable risk” of “impermissible factors coming into play” and corrupting a juror’s judgment. 425 U.S. at 504-05, 96 S.Ct. at 1693. Here, by contrast, Munoz’s comment was quite brief. We previously have noted that “the mere utterance of the word [jail, prison, or arrest] does not, without regard to context or circumstances, constitute reversible error per se.” United States v. Veteto, 701 F.2d 136, 139-40 (11th Cir.) (quoting United States v. Barcenas, 498 F.2d 1110, 1113 (5th Cir.), cert. denied, 419 U.S. 1036, 95 S.Ct. 521, 42 L.Ed.2d 312 (1974)), cert. denied, 463 U.S. 1212, 103 S.Ct. 3548, 77 L.Ed.2d 1396 and cert. denied, 464 U.S. 839, 104 S.Ct. 131, 78 L.Ed.2d 127 (1983). When viewed" }, { "docid": "22993962", "title": "", "text": "Holley indicated that he had and responded “yes” when the court asked if he “would have a lot of difficulty being a fair and impartial juror.” The district court immediately excused Holley for cause. Defense counsel moved for a mistrial on the grounds that Holley’s statements deprived the defendants of their presumption of innocence because such statements alerted the rest of the venire that the defendants “are all incarcerated or have been at some time or another.” We review the district court’s determination whether to strike an entire jury panel for manifest abuse of discretion. United States v. Trujillo, 146 F.3d 838, 842 (11th Cir.1998). “The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). The Supreme Court has. held that it is impermissible for a court to compel an accused to stand trial in identifiable prison clothes because it creates a “constant reminder of the accused’s condition ... [that] may affect a juror’s judgment.” Id. at 504-05, 96 S.Ct. 1691. “While use of such words as ‘jail,’ ‘prison,’ [and] ‘arrest’ are, generally to be avoided, where irrelevant, the mere utterance of the word does not, without regard to context or circumstances, constitute reversible error per se.” United States v. Veteto, 701 F.2d 136, 139-40 (11th Cir.1983) (quoting United States v. Barcenas, 498 F.2d 1110, 1113 (5th Cir.1974)). Instead, the presumption of innocence is only impaired in cases where some statement or action yields the danger of “a continuing influence throughout the trial....” Estelle, 425 U.S. at 505, 96 S.Ct. 1691. In United States v. Villabona-Garnica, 63 F.3d 1051 (11th Cir.1995), this court held that a witness’s brief reference to the accused’s incarceration, when viewed in context, was “unlikely to prejudice the jury sufficiently to rise to the level of a due process violation.” Id. at 1058. Similarly, in the instant case, Holley’s statements were not of sufficient magnitude to constitute a deprivation of the presumption of innocence. Holley’s statements were short" }, { "docid": "19816585", "title": "", "text": "see it, arouses a feeling that no person should be tried while shackled and gagged except as a last resort.” Id. at 344, 90 S.Ct. 1057. The Court also recognized the possibility “that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant.” Id. Thus, although the Court refused to rule out the possibility that binding and gagging might be the most reasonable way to deal with a disruptive defendant under certain circumstances, it made clear that such a measure would be appropriate only in the most extreme of cases. In Estelle v. Williams, 425 U.S. 501, 506, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), the Court held that requiring a defendant to wear “identifiable prison clothes” violated his due process right to a fair trial. The Court wrote: “The constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment. The defendant’s clothing is so likely to be a continuing influence throughout the trial that ... an unacceptable risk is presented of impermissible factors coming into play.” Id. at 504-05, 96 S.Ct. 1691. The Court also noted that, unlike the physical restraints it approved in Allen, requiring the defendant to don prison garb furthers no essential state policy. In Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), the Court held that the defendant’s right to due process was not violated by the presence of four uniformed state troopers in the first row of the spectator section of the courtroom. Although the Court “d[id] not minimize the threat that a roomful of uniformed and armed policemen might pose to a defendant’s chance of receiving a fair trial,” it “simply [could not] find an unacceptable risk of prejudice in the spectacle of four such officers quietly sitting in the first row of a courtroom’s spectator section.” Id. Mr. Lopez reads Allen and Williams as establishing that it is inherently prejudicial to require a defendant to stand trial in shackles or prison clothing. He also points to the Court’s suggestion in Holbrook that" }, { "docid": "14992044", "title": "", "text": "further analysis of the constitutionality of the presumption. It merely adopted the construction of the statute placed on it in Burnette. We have no occasion to consider whether the Virginia court correctly applied Yee Hem, because the Supreme Court of the United States decided Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973), and Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), as well as other pertinent cases after the decision in Burnette. Leary and Barnes refine and, at least arguably, alter the test of validity set forth in Yee Hem. In Leary, the basic test of invalidity was stated to be whether “it can ... be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” 395 U.S. at 36, 89 S.Ct. at 1548. Barnes, in an attempt to harmonize Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610.(1970); United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965); United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754,13 L.Ed.2d 658 (1965) — all of which are pertinent — and Leary stated: What has been established by the cases . is at least this: that if a statutory inference submitted to the jury as sufficient to support conviction satisfies the reasonable-doubt standard (that is, the evidence necessary to invoke the inference is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt) as well as the more-likely-than-not standard, then it clearly accords with due process. 412 U.S. at 843, 93 S.Ct. at 2361. Thus, Barnes may be read to suggest that the Virginia statute would meet the requirements of due process only if it can be said with substantial assurance that the inference of intent to commit burglary may, beyond a reasonable doubt, be inferred from the fact of possession of “burglarious” tools, implements or outfit. Although we stress that we express no opinion on the merits, we readily perceive" }, { "docid": "22443365", "title": "", "text": "public safety or assuring the decorum of the proceedings. In this case, the record does not indicate any compelling reason for shackling Duckett during his sentencing hearing. Therefore, we conclude his constitutional rights were violated when he was forced to appear in shackles before the sentencing jury. Because the record is not sufficiently developed to enable us to determine whether or not this constitutional error was harmless, we remand this question to the district court for an evidentiary hearing. A. Prison Clothes The first issue Duckett presents is whether his fundamental right to a fair sentencing hearing was violated when the trial court forced him to appear before the sentencing jury dressed in prison clothing. It is clear that a court cannot, without violating the Due Process Clause, compel an accused to wear identifiable prison clothing during his trial. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). This is because the practice furthers no essential state interest, and “the constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment” and impair the presumption of innocence, which is “a basic component of a fair trial under our system of criminal justice.” Id. at 503, 504-05, 96 S.Ct. at 1692-93, 1693-94. The presumption of innocence, however, no longer applies in the penalty phase of a bifurcated trial. At the penalty phase, the defendant stands convicted. His condition as a prisoner is no surprise to the jury, which just found him guilty. Prison clothing cannot be considered inherently prejudicial when the jury already knows, based upon other facts, that the defendant has been deprived of his liberty. See Estelle v. Williams, 425 U.S. at 507, 96 S.Ct. at 1694 (recognizing that “[n]o prejudice can result from seeing that which is already known”) (quotations and citations omitted); United States v. Stewart, 20 F.3d 911, 916 (8th Cir.1994) (holding that when circumstances permit shackling defendant during trial, compelling defendant also to wear prison clothing is not inherently prejudicial because his condition as a prisoner is already apparent to the jury); United States ex" }, { "docid": "19816584", "title": "", "text": "123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). This includes the holdings of Supreme Court decisions as well as “legal principles derived from th[ose] holdings.” Samuel v. Frank, 525 F.3d 566, 569 (7th Cir.2008). Mr. Lopez contends that three Supreme Court cases, taken together, establish the principle that a defendant has a “constitu tional right to appear in the garb of innocence before the jury deciding his case.” Appellant’s Br. 17 (citing Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986)). In Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), the Supreme Court held that the Constitution might permit, under some circumstances, a trial court to order that an obstreperous defendant be bound and gagged in the courtroom during his trial. The Court expressed reservations about this method of control; it acknowledged that “even to contemplate such a technique, much less see it, arouses a feeling that no person should be tried while shackled and gagged except as a last resort.” Id. at 344, 90 S.Ct. 1057. The Court also recognized the possibility “that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant.” Id. Thus, although the Court refused to rule out the possibility that binding and gagging might be the most reasonable way to deal with a disruptive defendant under certain circumstances, it made clear that such a measure would be appropriate only in the most extreme of cases. In Estelle v. Williams, 425 U.S. 501, 506, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), the Court held that requiring a defendant to wear “identifiable prison clothes” violated his due process right to a fair trial. The Court wrote: “The constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment. The defendant’s clothing is so likely to be a continuing influence throughout the trial that ... an unacceptable risk is" }, { "docid": "9540728", "title": "", "text": "inadvertently saw one or more of the defendants in handcuffs while they were outside the courtroom. The Supreme Court noted in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), that “no person should be tried while shackled and gagged except as a last resort.” Id. at 344, 90 S.Ct. at 1061. This court has recently held that it is unconstitutional to confine a defendant at trial to a “prisoner’s dock” in the absence of special security needs. See Young v. Callahan, 700 F.2d 32, 37 (1st Cir.), cert. denied, — U.S. —, 104 S.Ct. 194, 78 L.Ed.2d 170 (1983). These cases, which serve to guarantee that a defendant’s presumption of innocence will not be eroded at trial by the presence of physical restraint, deal with problems quite different from the one raised in this case. The defendants in the case sub judice were not shackled and gagged in the courtroom; they were handcuffed while transported to and from the courthouse. The jurors were not repeatedly reminded of the defendants’ confinement; the jurors had only an inadvertent quick glimpse once or twice of the defendants in handcuffs out of court. This evanescent image of the defendants would hardly dilute their presumption of innocence. In Dupont v. Hall, 555 F.2d 15 (1st Cir.1977), this court held that a defendant was not entitled to a mistrial when a jury engaged in its final deliberations accidentally saw the defendant in custody. Care should be taken whenever reasonably possible to prevent the jurors from viewing a defendant handcuffed while the defendant is on trial. In the absence of a showing of prejudice, however, a fleeting glance by jurors of a defendant outside the courtroom in handcuffs does not justify a new trial. y. In summary, the enforcement agents had probable cause to arrest Ayres, and the district court committed no error in admitting his statements at the police station, despite the exclusion of his earlier statements at the breachway. Ayres’s statements at the police station provided ample evidence to establish his relationship to the Fiesta smuggling operation. Furthermore, none of" } ]

[ { "docid": "6506138", "title": "", "text": "but that the optional credit life and disability insurance was additional security for the loan. That decision is not clearly erroneous. At least two other bankruptcy courts have come to the same conclusion when deciding this exact issue. In In re Wilson, 91 B.R. 74 (Bankr.W.D.Mo.1988), the court was confronted with a security provision very similar to the clause in the Transouth loan agreement. The promissory note in the Wilson case provided: “SECURITY. You may use any benefits (including premium refunds on purchased insurance) from insurance purchased or required under this loan to pay amounts I owe.” Id. at 76. The debtors had purchased credit life and disability insurance in connection with their note, and they were required by their deed of trust to have property insurance. Although the lender claimed to hold a securi ty interest only in the debtors’ residence thereby coming within the protection of 11 U.S.C. § 1322(b)(2), the court ruled that the lender took a security interest in all three of the debtors’ insurance coverages through the above-quoted clause. Id. Thus, § 1322(b)(2) did not apply, and the debtors’ modification was allowable. Id. Likewise, the debtors’ assignment of insurance proceeds as collateral was fatal to the lender’s claim of § 1322(b)(2) protection in United Companies Fin. Corp. v. Brantley, 6 B.R. 178 (Bankr.N.D.Fla.1980). There, the debtor executed a separate document entitled “Assigment of Life Insurance Policy as Collateral.” Id. at 189-90. The court ruled that under the circumstances, the exception to § 1322(b)(2) was “manifestly inapplicable.” Id. at 190. Transouth contends that its situation can be distinguished from the above cases because the insurance in this case was entirely optional. They claim that the insurance is wholly for the benefit of the debtors and provides no extra security for Transouth, especially when the loan amount already is fully secured by the property. The court finds that the Wilson and Brantley cases cannot be distinguished on the basis that the insurance in those cases was required, where that fact is not at all clear in either of those cases. See Wilson, 91 B.R. at 76; Brantley," } ]

[ { "docid": "7256161", "title": "", "text": "existence apart from the improvements insured on the realty.); In re Jackson, 136 B.R. 797 (Bankr.N.D.Ill.1992) (“[T]he boilerplate language granting the mortgagee the right to receive and use property insurance proceeds in the event of some destruction of the property does not create an additional type of collateral securing the mortgage obligation.”); In re Ireland 137 B.R. 65 (Bankr.M.D.Fla.1992) (neither boilerplate language in mortgage nor credit life and disability policies constitute additional security); In re Braylock, 120 B.R. 61, 64 (Bankr.N.D.Miss.1990) (“to hold that ... [fire and casualty] insurance coverage constitutes additional security interest would completely eviscerate the protective exception for residential lenders found in Section 1322(b)(2)”). Many of the courts which have held that insurance proceeds do provide additional security were reviewing mortgages that took an interest in insurance on the life of the debtor, such as credit life or disability insurance, rather than insurance on the property, such as hazard insurance. See In re Selman, 120 B.R. 576 (Bankr.D.N.M.1990) (credit life and hazard insurance constitutes additional security); Transouth Fin. Corp. v. Hill, 106 B.R. 145, 146-47 (W.D.Tenn.1989) (optional credit life and disability insurance written in connection with loan constitutes additional security); In re Wilson, 91 B.R. 74, 76 (Bankr.W.D.Mo.1988) (where creditor took security interest in three insurance policies, including proceeds and return premiums, constitutes additional security); In re Stiles, 74 B.R. 708, 710 (Bankr.N.D.Ala.1987) (interest in policy on lives of debtors constitutes additional security). As stated, to determine whether the language in the clause creates security in “additional collateral” independent of the realty, an examination of the language in the loan documents and the relevant state law must be conducted. Nobelman, 508 U.S. at 329, 113 S.Ct. at 2110; Eastwood 192 B.R. at 96. In the instant matter, the Mortgage states: “The Funds are pledged as additional security for the sums secured by this Security Instrument.” Mortgage at 4. At first blush, it would appear this language would create a security interest in additional personalty. A review of the entire Funds Provision and the nature of the Funds contributions demonstrates that the Funds do not constitute additional security" }, { "docid": "13845751", "title": "", "text": "security interest attaches only to real property and to fixtures created under mortgage and real estate law. In Reeves, the mortgage language granted a security interest in fixtures which was created under Article 9 of the Uniform Commercial Code, and not a security interest created under real estate law. This meant that additional collateral besides the principal residence existed, and § 1322(b) did not apply- In considering what constitutes “additional security” under § 1322(b) of the Bankruptcy Code, courts have adopted a strict statutory interpretation. As stated by the district court in In re Diquinzio, 110 B.R. 628 (Bankr.D.R.1.1990), a credit life policy was not additional security, and its existence did not permit modification of the debtors' mortgage. Id., at 629. Additionally, the Diquinzio court distinguished cases such as United Companies Financial Corp. v. Brantley, 6 B.R. 178 (Bankr. N.D.Fla.1980), where a life insurance policy was separately pledged as additional security. In United Companies Financial Corp., the court noted the rationale behind its ruling was specific to the circumstances of that case. The court noted that the life insurance policy pledge document was entitled “Assignment of Life Insurance Policy as Collateral.” In the case at bar, the credit life and credit disability insurance purchased by the Debtors lists the Bank as loss payee. The same is true as to the hazard insurance required by the mortgage to be maintained by the Debtors. Moreover, there is no life insurance policy assignment to the Bank, as existed in United Companies Financial Corp. Based on the foregoing, neither the boilerplate language of the Debtors’ mortgage nor the credit life and disability policies constitute additional security under § 1322(b), which if present, would allow for the modification of the Bank’s claim. Accordingly, the Bank holds a claim secured only by a security interest in the Debtors’ principal residence and therefore, the Debtors may not modify the Bank’s claim. Accordingly, it is ORDERED, ADJUDGED AND DECREED that the Motion be, and the same is hereby, granted, and the Bank is hereby determined to be a fully secured creditor. DONE AND ORDERED." }, { "docid": "6506137", "title": "", "text": "mortgage and the Transouth loan. Included in the amount of the Transouth loan were premiums for credit life insurance and credit disability insurance, which the debtors had elected by signing in the appropriate space on the loan contract. The credit insurance was optional with the debtors, and the loan agreement clearly states that the insurance is not required in order to receive the loan. The contract did require the debtors to have property insurance on the collateral. After the section on insurance, the loan agreement states: SECURITY: To protect us if you don’t repay your loan, you grant us a security interest in the collateral checked below. In addition, you assign to us any proceeds which may become payable through insurance on the property or written in connection with this loan. This includes unearned or return premiums. Below, a box is marked designating as collateral the deed of trust on the debtors’ home in Saltillo, Tennessee. The bankruptcy court ruled in light of these provisions that the loan was not secured only by real property, but that the optional credit life and disability insurance was additional security for the loan. That decision is not clearly erroneous. At least two other bankruptcy courts have come to the same conclusion when deciding this exact issue. In In re Wilson, 91 B.R. 74 (Bankr.W.D.Mo.1988), the court was confronted with a security provision very similar to the clause in the Transouth loan agreement. The promissory note in the Wilson case provided: “SECURITY. You may use any benefits (including premium refunds on purchased insurance) from insurance purchased or required under this loan to pay amounts I owe.” Id. at 76. The debtors had purchased credit life and disability insurance in connection with their note, and they were required by their deed of trust to have property insurance. Although the lender claimed to hold a securi ty interest only in the debtors’ residence thereby coming within the protection of 11 U.S.C. § 1322(b)(2), the court ruled that the lender took a security interest in all three of the debtors’ insurance coverages through the above-quoted clause. Id." }, { "docid": "8883014", "title": "", "text": "re Stiles, 74 B.R. 708 (Bankr.N.D.Ala.1987), the creditor had taken a security interest in Debtors’ residence and in credit life insurance. The credit life insurance had been purchased at a cost of more than $2,500 from the lender and that cost had been included in the amount financed. The court seemed particularly offended by the interest rate charged by the lender, which exceeded 21%. The court held that the security interest in the credit life insurance was an additional security interest which resulted in modifiability of the secured claim. On the other hand, in the case of In re DiQuinzio, 110 B.R. 628 (Bankr.D.R.I.1990), the mortgagee’s contingent interest in a credit life policy was not considered additional security which would remove the mortgage from § 1322(b)(2) protection. In the case of In re Ross, 107 B.R. 759 (Bankr.W.D.Okla.1989), the court found that boilerplate language in mortgage instruments referring to insurance, rents and profits, buildings, improvements, machinery, equipment and the like does not constitute “additional security” for the debt which would preclude application of § 1322(b)(2). Finally, in the case of In re Williams, 109 B.R. 36 (Bankr.E.D.N.Y.1989), a security interest in a refrigerator, window shades and other fixtures was found to be so nominal in value as to have no significant meaning and should not have any effect in determining whether the mortgagee’s interest could be modified under § 1322. The court opined that the true Congressional intent behind § 1322(b)(2) was to protect traditional mortgage lenders who provide long-term, purchase-money financing of residences, not for short term consumer financing. Personalty Debtor’s argument that a bare security interest in fixtures removes the security interest from the protection of § 1322(b)(2) is unpersuasive. In the instant case, the language of the Security Deed limits the security interest to property which is, in fact, a fixture under Georgia law but which under other circumstances might be personalty. The general rule in Georgia is that personal property which is actually or constructively attached to real property is considered part of the realty so that an interest arises in it under real estate law." }, { "docid": "18891948", "title": "", "text": "Collier on Bankruptcy. In discussing this issue, the treatise states: Creditors sometimes demand real property and personal property to secure the same debt. Even purchase money mortgages often take incidental security interests in appliances, furniture and other personalty. Other creditors may have security interests in other real property, rents, escrow accounts, bank accounts, motor vehicles or insurance proceeds. All such claims may be modified by a chapter 13 plan, and a creditor may not protect its claim from modification by relinquishing its other liens after a bankruptcy is filed. 5 Collier ¶ 1322.06 at 1322-14-15 (footnotes omitted). Accord In re Stiles, 74 B.R. 708 (Bankr.N.D.Ala.1987) (claim secured by principal residence and life insurance may be modified); In re Lapp, 66 B.R. 67 (Bankr.D.Colo.1986) (claim secured by principal residence and irrigation equipment may be modified); In re Ramirez, 62 B.R. 668 (Bankr.S.D.Cal.1986) (claim secured by property serving as principal residence and rental property may be modified); In re Baksa, 5 B.R. 184 (Bankr.N.D. Ohio 1980) (creditor cannot prevent modification by canceling security interest in automobile and furniture). Having listed personal property as collateral, Commonwealth has a secured interest in it. It follows that Commonwealth’s claim is not one “secured only by a security interest in real property that is the debtors’ principal residence,” and section 1322’s anti-modification provision does not apply. Therefore, Commonwealth’s rights in the unsecured portion of its claim may be modified as provided by section 506. y. For the reasons stated above, the order of the district court will be affirmed. . The parties did not stipulate to and no evidence was introduced concerning the existence and value of the Wilsons’ furniture, appliances, machinery, and equipment. However, the bankruptcy court assumed that the debtors owned some of these items and that they were not valueless. Although Commonwealth disputes the value of the items, it does not claim that none exist or that they have no value and it has not introduced any evidence to that effect. This case is therefore distinguishable from the situation in In re Lewis, 875 F.2d 53 (3d Cir.1989), where, although the plan contained" }, { "docid": "16759469", "title": "", "text": "1990, Associates held a valid, perfected security interest in the es crow payments. While a secured creditor may release all or part of any collateral securing its claim before bankruptcy, O.C.G.A. § 11-9-406, In re Ivey, 13 B.R. 27 (Bankr.W.D.N.C.1981), a secured creditor cannot, postpetition, improve its position under § 1322(b)(2) by releasing its lien against only part of its collateral. In re Baksa, 5 B.R. 184, 187 (Bankr.N.D.Ohio 1980). See also Wilson v. Commonwealth Mortg. Corp., 895 F.2d 123, 129 (3rd Cir.1990). “Where a creditor, with knowledge that a Chapter 13 petition and plan [have been filed], cancels its secured interest in a portion of the property of the debtor, it holds as security, with the intent of circumventing and abusing the provisions of Chapter 13, the creditor is not acting in good faith.” Baksa, supra, at 187. Creditors sometimes demand real property and personal property to secure the same debt. Even purchase money mortgages often take incidental security interest in appliances, furniture and other personalty. Other creditors may have security interests in other real property, rents, escrow accounts, bank accounts, motor vehicles or insurance proceeds. All such claims may be modified by a chapter 13 plan, and a creditor may not protect its claim from modification by relinquishing its other liens after a bankruptcy is filed. 5 Collier on Bankruptcy, 111322.06, 1322-14-15 (L. King 15th ed. 1991) (footnotes omitted) (emphasis added). Associates’ postpetition release of its security interest in the debtor’s escrow account payments is irrelevant for purposes of a § 1322(b)(2) analysis. At the time of the debtor’s filing under Chapter 13, Associates held a valid, perfected security interest in the escrow account payments. The motion for relief from the automatic stay of 11 U.S.C. § 362(a) by Associates in order to foreclose its security interest is without merit. Associates contends that it is not adequately protected by the proposed plan of the debtor because the debtor seeks to include the secured claim of Associates in her Chapter 13 plan to be paid from disbursements by the Chapter 13 trustee. Associates argues this is an attempt to" }, { "docid": "3143298", "title": "", "text": "of the claim were allowed, the debtors are undervaluing the portion of the land which includes their residence, thereby decreasing the secured portion of its claim. DISCUSSION The issues in this case are two. The threshold question is whether § 1322(b)(2) applies to prohibit the modification of Associates’ claim. If it does, the debtors alternatively argue that 11 U.S.C. § 506(a) can operate to modify Associates’ claim by reducing the secured portion. I. Modification under § 1322(b)(2) The statute provides, in relevant part, that “the plan may — modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence ...” 11 U.S.C. § 1322(b)(2) (emphasis added). The debtors contend that § 1322(b)(2) is inapplicable because Associates’ claim is secured by additional collateral consisting of credit life and hazard insurance policies which name Associates as payee/beneficiary. In support of their position, the debtors cite numerous cases where the courts have allowed modification when additional security exists. See, e.g., Wilson v. Commonwealth Mortgage Corp., 895 F.2d 123 (3d Cir.1990) (security interest in appliances, machinery, furniture and equipment); In re Klein, 106 B.R. 396 (Bankr.E.D.Pa.1989) (security interest in hazard insurance proceeds, any personalty supplying heating to the debtors, and rents, profits, and issues of the premises); In re Jakes, 99 B.R. 393 (Bankr.M.D.Tenn.1989) (lien on the improvements and fixtures on a residence and the proceeds from the sale of such improvements and fixtures). Additional support for the debtor’s position can be found elsewhere. “A claim secured by any other real property or by personal property of the estate or of the debtor, ... may be modified by the chapter 13 plan ... creditors may have security interests in other real property, ... or insurance proceeds. All such claims may be modified by a chapter 13 plan.” 5 Collier on Bankruptcy U 1322.06[1][a] at 1322-14, 15 (15th ed. 1984) (emphasis added; footnotes omitted). Expressly on point are the cases the debtors cite which hold that credit life and hazard insurance policies constitute additional security. Transouth Financial Corp. v." }, { "docid": "5171228", "title": "", "text": "ORDER GEORGE C. PAINE, II, Chief Judge. This matter is before the court on Tran-south Financial Corporation’s objection to the debtor Chapter 13 plan. The following constitute findings of fact and conclusions of law. Fed.R.Bankr.P. 9014, 7052. Transouth holds a claim against the debtors secured by a second mortgage on the debtors’ principal residence. The debtor’s plan would modify Transouth’s rights under its promissory note. Transouth objects alleging that the proposed modification violates the requirement of 11 U.S.C. § 1322(b)(2) (Supp. V. 1987). Section 1322 permits a plan to modify the rights of any holders of secured claims except those that are “secured only by a security interest in real property that is the debtors principal residence”. The primary purpose of this exception is to protect long-term purchase money mortgage lenders. The exception has been read very narrowly for second mortgages such as the one in this case. If anything is used as collateral beyond the residence the loan terms may be modified. In re Stiles, 74 B.R. 708, 710 (Bankr.N.D.Ala.1987) (an assignment of life insurance.proceeds); In re Reeves, 65 B.R. 898, 901 (N.D.Ill.1986) (a lien on fixtures by both a real property mortgage and a UCC security interest); United Companies Financial Corp. v. Brantley, 6 B.R. 178, 189-90 (Bankr.1980) (security interest in life insurance proceeds including unearned premiums). The debtor raises several arguments to establish that Transouth’s claim is secured by more than just the debtor’s principal residence. The court finds one of these arguments persuasive. Specifically the Deed of Trust establishes a lien on all improvements and fixtures on the property and the proceeds from the sale of any such fixtures. Although, the fixtures are part of the real property and as such are not a separate security for the claim, the lien on proceeds is clearly a lien on personalty. As such, it is an additional security interest beyond simply a security interest in the debtor’s principal residence. Thus, the debtor may modify the rights of Transouth because it does not fit the exception carved out in § 1322(b)(2). Accordingly the court will confirm the plan as" }, { "docid": "1092656", "title": "", "text": "event of some destruction of the property does not create an additional type of collateral securing the mortgage obligation. Wright, 128 B.R. at 844; In re Ross, 107 B.R. at 762; In re DiQuinzio, 110 B.R. 628 (Bankr.D.R.I.1990). Language which goes beyond the traditional right to use proceeds to pay off the obligation, however, may constitute the pledge of additional security. See, e.g., Transouth Financial Corp. v. Hill, 106 B.R. 145 (W.D.Tenn.1989) (holding that the assignment of “any proceeds from any insurance on the property or written in connection with this loan,” including unearned or return premiums, in a paragraph entitled “Security,” constituted a pledge of optional credit life and disability insurance as security in addition to the real property); In re Wilson, 91 B.R. 74 (Bankr.W.D.Mo.1988) (holding that a pledge of credit life, disability and property insurance benefits, including premium refunds constituted additional security). The language in the mortgage at issue here merely authorizes the mortgagee to receive insurance proceeds and use such proceeds to pay down the obligation or repair the property in the event of some destruction, without pledging unearned premiums or requiring the assignment of credit life or other types of insurance proceeds. This boilerplate language does not constitute a pledge of additional security under § 1322(b)(2). The Court finds that with respect to the fixtures and insurance proceeds addressed therein, the claim is secured only by an interest in the real property used as the Debtor’s principal residence. 2. Rents, Issues and Profits The mortgage document, however, also pledges and assigns as additional security, the rents, issues and profits derived from the real estate. The Court finds that this language creates a security interest in property other than the real estate used as the Debtor’s principal residence. As with the language regarding fixtures and insurance, a significant split of authority has developed over whether a pledge of rents and profits constitutes additional security. For example, the District Court in In re Hougland, 93 B.R. 718 (D.Ore.1988), aff'd, 886 F.2d 1182 (9th Cir. 1989), concluded that the grant “as additional security ... all rents, issues, royalties," }, { "docid": "5246974", "title": "", "text": "a secured claim, “other than a claim secured only by a security interest in real property that is the debtor’s principal residence.” The Court seriously doubts that the voluntary election by a debtor to obtain a credit life insurance policy, even though the lender is designated the policy beneficiary, creates a “security interest.” The credit life insurance policy is not described in the security agreement, nor is there any document that has been presented to this Court that attempts to perfect a lien in or an assignment of the policy. Two cases cited by the debtor that are particularly on point are In Re Stiles, 74 B.R. 708 (Bankr.N.D.Ala.1987), and In Re Wilson, 91 B.R. 74 (Bankr.W.D.Mo.1988). Wilson can technically be distinguished from the instant proceeding because the Court there found the creditor to have an additional security interest, evidenced by the loan documentation, in the unearned or return premiums that were applicable to three different insurance policies, one of which was a credit life policy. Because this Court is of the opinion that the drafters of § 1322(b)(2) did not contemplate that a credit life insurance policy, naming the creditor as the beneficiary, would be considered an additional security interest, this Court respectfully disagrees with the holding of Stiles. The Court in Stiles, like this Court, was perplexed with the exorbitant interest rate being charged by the creditor on the loan, as well as, to finance the credit life policy premium. This Court, however, is not persuaded that one optional credit life insurance policy, where the unearned premium is refundable to the debtor and where the proceeds of which would only become available on the debtor’s death, is an additional security interest which negates the protective exception found in § 1322(b)(2). Therefore, the debtor will not be permitted to modify Credit Center’s secured claim. IV. Although Credit Center’s secured claim may not be modified as set forth herein-above, the debtor may still cure her default as to said claim pursuant to § 1322(b)(3). As such, the debtor will be permitted to pay the full amount of Credit Center’s claim" }, { "docid": "8883013", "title": "", "text": "if the creditor did not intend to obtain a secured interest in personal property, “it should delete such language from its agreements.” Id. at 129. In the case of Kessler v. Homestead Savings Bank, 99 B.R. 635 (Bankr.E.D.Pa.1989), the mortgage included a security interest in “ ‘plumbing, cooking, heating, lighting, fixtures, appliances’ and other appurtenances to the realty as well as on the realty itself.” The court held, relying on reasoning in its prior cases, that the security interest in personalty removed the mortgage from the protection of § 1322. In the case of In re Caster, 77 B.R. 8 (Bankr.E.D.Pa.1987), the mortgage covered the real property of the debtor and “appliances, machinery, furniture and equipment (whether fixtures or not) of any nature whatsoever now or hereafter installed.” The court rejected the creditor’s argument that the inclusion of the quoted clause was boilerplate language and that the mortgage instrument was insufficient under state law to create a perfected security interest in personalty. The court allowed modification of the secured claim. In the case of In re Stiles, 74 B.R. 708 (Bankr.N.D.Ala.1987), the creditor had taken a security interest in Debtors’ residence and in credit life insurance. The credit life insurance had been purchased at a cost of more than $2,500 from the lender and that cost had been included in the amount financed. The court seemed particularly offended by the interest rate charged by the lender, which exceeded 21%. The court held that the security interest in the credit life insurance was an additional security interest which resulted in modifiability of the secured claim. On the other hand, in the case of In re DiQuinzio, 110 B.R. 628 (Bankr.D.R.I.1990), the mortgagee’s contingent interest in a credit life policy was not considered additional security which would remove the mortgage from § 1322(b)(2) protection. In the case of In re Ross, 107 B.R. 759 (Bankr.W.D.Okla.1989), the court found that boilerplate language in mortgage instruments referring to insurance, rents and profits, buildings, improvements, machinery, equipment and the like does not constitute “additional security” for the debt which would preclude application of § 1322(b)(2)." }, { "docid": "3143301", "title": "", "text": "the performance of the following obligations: ... The amount specified for insurance as provided in the statutory mortgage condition is $74,500 and the hazards to be insured against fire and loss. Associates’ Exh. A. Thus, the documents do show the existence of credit life and hazard insurance as an obligation to be performed for the benefit of Associates, the mortgagee which constitutes additional security. Second, Associates contends that “common, ‘boiler plate’ language in mortgage instruments, referring to insurance, ... [does] not constitute additional security for the debt which would preclude the application of § 1322(b)(2).” Associates’ brief, 8 (citing, In re Ross, 107 B.R. 759, 762 (Bankr.W.D.Okla.1989)). The insurance for which the debtor pays premiums constitutes the additional security, not the “boiler plate” language of the mortgage. Why would Associates be named as payee/beneficiary of the two policies if not to further secure its position? Associates’ argument is defeated by its own conduct in accepting the credit life and hazard insurance as collateral. In re Stiles, 74 B.R. 708, 710 (Bankr.N.D.Ala.1987). The Court finds persuasive the cases which hold that credit life and hazard insurance policies constitute additional security. Therefore, the Court finds that the credit life and hazard insurance policies do constitute additional security and the debtors are not barred by § 1322(b)(2) from modifying Associates’ claim. The debtors’ plan proposes separating the 7.2 acres into two parcels. There was no showing whether applicable nonbank-ruptcy law allows the separation. The debtors may separate the property if they can do so in conformity with nonbankrupt-cy law. II. Modification under 11 U.S.C. § 506(a) Having found that § 1322(b)(2) does not operate to bar the modification of Associates’ claim, the Court need not examine the debtors’ alternative argument under § 506(a). However, there is a question concerning the value of the 1.2 acre portion of land with the debtor’s residence. The value will determine the amount of Associates’ secured claim. No evidence was presented on the value of the land and therefore the Court will not rule on that question. CONCLUSION The Court finds that § 1322(b)(2) does not apply in" }, { "docid": "8339655", "title": "", "text": "prevent C & F from obtaining the benefit of Section 1322(b)(2). The Court next turns to the impact of a credit life insurance policy on application of Section 1322. Courts have reached differing results on the issue of whether a credit life insurance policy constitutes additional security under Section 1322(b)(2). The Court in In re Braylock, 120 B.R. 61 (Bankr.N.D.Miss.1990) stated: The Court seriously doubts that the voluntary election by a debtor to obtain a credit life insurance policy, even though the lender is designated the policy beneficiary, creates a “security interest.” The credit life insurance policy is not described in the security agreement, nor is there any document that has been presented to this Court that attempts to perfect a lien in or an assignment of the policy. Two cases cited by the debtor that are particularly on point are In re Stiles, 74 B.R. 708 (Bankr.N.D.Ala.1987), and In re Wilson, 91 B.R. 74 (Bankr.W.D.Mo.1988). Wilson can technically be distinguished from the instant proceeding because the Court here found the creditor to have an additional security interest, evidenced by the loan documentation, in the unearned or return premiums that were applicable to three different insurance policies, one of which was a credit life policy. Because this Court is of the opinion that the drafters of § 1322(b)(2) did not contemplate that a credit life insurance policy, naming the creditor as the beneficiary, would be considered an additional security interest, this Court respectfully disagrees with the holding of Stiles ... This Court, however, is not persuaded that one optional credit life insurance policy, where the unearned premium is refundable to the debtor and where the proceeds of which would only become available on the debtor’s death, is an additional security interest which negates the protective exception found in § 1322(b)(2). Therefore, the debtor will not be permitted to modify Credit Center’s secured claim. 120 B.R. at 63-64. See also, In re Ireland, 137 B.R. 65 (Bankr.M.D.Fla.1992); In re Jackson, 136 B.R. 797 (Bankr.N.D.Ill.1992); In re Diquinzio, 110 B.R. 628 (Bankr.D.R.I.1990). This Court agrees with Courts which have held that a" }, { "docid": "3143299", "title": "", "text": "Commonwealth Mortgage Corp., 895 F.2d 123 (3d Cir.1990) (security interest in appliances, machinery, furniture and equipment); In re Klein, 106 B.R. 396 (Bankr.E.D.Pa.1989) (security interest in hazard insurance proceeds, any personalty supplying heating to the debtors, and rents, profits, and issues of the premises); In re Jakes, 99 B.R. 393 (Bankr.M.D.Tenn.1989) (lien on the improvements and fixtures on a residence and the proceeds from the sale of such improvements and fixtures). Additional support for the debtor’s position can be found elsewhere. “A claim secured by any other real property or by personal property of the estate or of the debtor, ... may be modified by the chapter 13 plan ... creditors may have security interests in other real property, ... or insurance proceeds. All such claims may be modified by a chapter 13 plan.” 5 Collier on Bankruptcy U 1322.06[1][a] at 1322-14, 15 (15th ed. 1984) (emphasis added; footnotes omitted). Expressly on point are the cases the debtors cite which hold that credit life and hazard insurance policies constitute additional security. Transouth Financial Corp. v. Hill, 106 B.R. 145 (W.D.Tenn.1989) (credit life and disability insurance); In re Wilson, 91 B.R. 74 (Bankr.W.D.Mo.1988) (credit life, disability, and property damage insurance); In re Stiles, 74 B.R. 708 (Bankr.N.D.Ala.1987) (credit life insurance). In these cases, the courts found that additional security existed so that the bar on modification in § 1322(b)(2) would not apply. In attempting to distinguish the cases which go against its position, Associates makes two alternative arguments. First, Associates contends that in this case, the promissory note does not mention additional security whereas in Wilson and Tran-south, the notes specifically referred to the additional security. The promissory note here states: SECURITY. I give you a Real Estate Mortgage dated the same as this loan agreement to assure that I keep the promises I have made in this loan agreement. The Real Estate Mortgage covers my real estate at 26 Rd. 5173 Bloomfield, New Mexico. Associates’ Exh. A. However, the mortgage, which bears the same date as the loan agreement, does refer to additional security. The mortgage provides: This mortgage secures" }, { "docid": "13845738", "title": "", "text": "residence, permitted bifurcation in a Chapter 13 case because the mortgage held by the mortgagee was not limited only to the principal residence of the debt- or, but covered additional collateral (emphasis supplied). In Wilson, the mortgagor urged that the so-called additional collateral had no independent value, and therefore it was not really additional security which would permit the application of the prohibition against alteration and modification of claims secured by a mortgage covering only the principal residence of a debtor. The Third Circuit in Wilson rejected this contention by relying on the statement in 5 Collier, 111322.06 at 1322-14-15 (footnotes omitted) to the effect that if mortgagees take a security interest in appliances, furniture and other personalties, such claim may be modified in a Chapter 13 plan and the creditor may not protect its claim from modification by relinquishing its other liens after the bankruptcy is filed. The court in Wilson based its decision on the conclusion that the normal principles of statutory construction require that the court accord the natural meaning of the words used in the statute, and when the language used is clear and unambiguous, there is no room to resort to legislative history or extraneous matters. This is so, according to the holding of Wilson, because § 103 of the Bankruptcy Code provides that provisions of Chapter 5 apply to all operating chapters, and thus, § 506(a) and (d) apply to Chapter 13 cases. Moreover, according to the court in Wilson, since the mortgage in that case encumbered not only the Debtors’ principal residence, but also encumbered additional properties of the debtors, the prohibition against modifying rights of secured creditors set forth in § 1322(b)(2) did not apply, and the debtors were authorized to rely on § 506(a) and (d) to bifurcate the claim to strip down the mortgage involved. The holding and the rationale of the Wilson court was accepted by several bankruptcy courts. E.g., In re Stiles, 74 B.R. 708 (Bankr.N.D.Ala.1987) (claim secured by principal residence and life insurance may be modified); In re Lapp, 66 B.R. 67 (Bankr.D.Colo.1986) (claim secured by principal" }, { "docid": "8339654", "title": "", "text": "provisions of Chapter 13, the creditor is not acting in good faith. It is the conclusion of this court that the same standards should be applicable to the creditor and to the debtor, especially in this case where the creditor is fully secured and adequately protected and the unsecured creditors would be the only parties injured should confirmation be denied and liquidation occur ... Therefore, it is the conclusion of this court that the objection of Beneficial Financial Company to the confirmation of the debtors’ Chapter 13 plan of arrangement is overruled. 5 B.R. at 186-87. See also, 3 Norton Bankruptcy Law and Practice § 74.05 (1990); Bankruptcy Service, L.Ed. § 8:18 (1990). There has been no indication here that the release of the automobile lien 2V2 years prior to filing of the bankruptcy petition was an action taken with the intent of circumventing and abusing the provisions of Chapter 13. To the contrary, it has been indicated that the release was effected on the debtor’s request. Therefore, the release of the lien will not prevent C & F from obtaining the benefit of Section 1322(b)(2). The Court next turns to the impact of a credit life insurance policy on application of Section 1322. Courts have reached differing results on the issue of whether a credit life insurance policy constitutes additional security under Section 1322(b)(2). The Court in In re Braylock, 120 B.R. 61 (Bankr.N.D.Miss.1990) stated: The Court seriously doubts that the voluntary election by a debtor to obtain a credit life insurance policy, even though the lender is designated the policy beneficiary, creates a “security interest.” The credit life insurance policy is not described in the security agreement, nor is there any document that has been presented to this Court that attempts to perfect a lien in or an assignment of the policy. Two cases cited by the debtor that are particularly on point are In re Stiles, 74 B.R. 708 (Bankr.N.D.Ala.1987), and In re Wilson, 91 B.R. 74 (Bankr.W.D.Mo.1988). Wilson can technically be distinguished from the instant proceeding because the Court here found the creditor to have an" }, { "docid": "3143300", "title": "", "text": "Hill, 106 B.R. 145 (W.D.Tenn.1989) (credit life and disability insurance); In re Wilson, 91 B.R. 74 (Bankr.W.D.Mo.1988) (credit life, disability, and property damage insurance); In re Stiles, 74 B.R. 708 (Bankr.N.D.Ala.1987) (credit life insurance). In these cases, the courts found that additional security existed so that the bar on modification in § 1322(b)(2) would not apply. In attempting to distinguish the cases which go against its position, Associates makes two alternative arguments. First, Associates contends that in this case, the promissory note does not mention additional security whereas in Wilson and Tran-south, the notes specifically referred to the additional security. The promissory note here states: SECURITY. I give you a Real Estate Mortgage dated the same as this loan agreement to assure that I keep the promises I have made in this loan agreement. The Real Estate Mortgage covers my real estate at 26 Rd. 5173 Bloomfield, New Mexico. Associates’ Exh. A. However, the mortgage, which bears the same date as the loan agreement, does refer to additional security. The mortgage provides: This mortgage secures the performance of the following obligations: ... The amount specified for insurance as provided in the statutory mortgage condition is $74,500 and the hazards to be insured against fire and loss. Associates’ Exh. A. Thus, the documents do show the existence of credit life and hazard insurance as an obligation to be performed for the benefit of Associates, the mortgagee which constitutes additional security. Second, Associates contends that “common, ‘boiler plate’ language in mortgage instruments, referring to insurance, ... [does] not constitute additional security for the debt which would preclude the application of § 1322(b)(2).” Associates’ brief, 8 (citing, In re Ross, 107 B.R. 759, 762 (Bankr.W.D.Okla.1989)). The insurance for which the debtor pays premiums constitutes the additional security, not the “boiler plate” language of the mortgage. Why would Associates be named as payee/beneficiary of the two policies if not to further secure its position? Associates’ argument is defeated by its own conduct in accepting the credit life and hazard insurance as collateral. In re Stiles, 74 B.R. 708, 710 (Bankr.N.D.Ala.1987). The Court finds persuasive" }, { "docid": "5246973", "title": "", "text": "the debtor. The pro'ceeds of a fire and casualty insurance policy likewise only become available when an unfortunate event occurs, i.e., the destruction of the collateral security. The raison d’etre for these insurance policies is strikingly similar. Although the Court is of the opinion that the interest rate charged by Credit Center on the principal loan, as well as, on the financed insurance premium is extremely burdensome, this is not a sufficient reason to conclude that the credit life insurance policy constitutes an additional security interest. Not only could the debtor have avoided entering into a loan transaction at such a vexatious interest rate, she also had the option of declining the credit life insurance coverage. The promissory note clearly indicates that credit life insurance was not required to obtain the loan. There was also no testimony offered by the debtor that she was coerced or forced into purchasing this policy. The protective exception for residential lenders found in § 1322(b)(2) states, inter alia, that a debtor can modify the rights of a holder of a secured claim, “other than a claim secured only by a security interest in real property that is the debtor’s principal residence.” The Court seriously doubts that the voluntary election by a debtor to obtain a credit life insurance policy, even though the lender is designated the policy beneficiary, creates a “security interest.” The credit life insurance policy is not described in the security agreement, nor is there any document that has been presented to this Court that attempts to perfect a lien in or an assignment of the policy. Two cases cited by the debtor that are particularly on point are In Re Stiles, 74 B.R. 708 (Bankr.N.D.Ala.1987), and In Re Wilson, 91 B.R. 74 (Bankr.W.D.Mo.1988). Wilson can technically be distinguished from the instant proceeding because the Court there found the creditor to have an additional security interest, evidenced by the loan documentation, in the unearned or return premiums that were applicable to three different insurance policies, one of which was a credit life policy. Because this Court is of the opinion that the" }, { "docid": "18891947", "title": "", "text": "significance to Commonwealth’s failure to file financing statements on the debtors’ personalty. Under the Uniform Commercial Code as adopted by Pennsylvania, a security interest in personal property can be created by any security agreement signed by the debtor even if a financing statement covering the collateral has not been filed. 13 Pa. Cons. Stat.Ann. § 9203(a)(1). A mortgage such as the one here which includes furniture, equipment, machinery and appliances in its description of collateral clearly creates a security interest in that personal property. See In re Bender, 86 B.R. 809, 814 (Bankr.E.D.Pa.1988); In re Caster, 77 B.R. 8, 11-13 (Bankr.E.D.Pa.987); In re Cervantes, 67 B.R. 816, 818-19 (Bankr.E.D.Pa.1986). Moreover, Commonwealth’s subjective desire to obtain an interest in the property is irrelevant. The language of section 1322(b)(2) is unambiguous. The language of the bankruptcy judge bears repeating: “If Commonwealth wishes otherwise, it should delete such language from its agreements.” Our interpretation of section 1322(b) in light of the language of the mortgage is consistent with the analysis applied by the authors of the respected treatise Collier on Bankruptcy. In discussing this issue, the treatise states: Creditors sometimes demand real property and personal property to secure the same debt. Even purchase money mortgages often take incidental security interests in appliances, furniture and other personalty. Other creditors may have security interests in other real property, rents, escrow accounts, bank accounts, motor vehicles or insurance proceeds. All such claims may be modified by a chapter 13 plan, and a creditor may not protect its claim from modification by relinquishing its other liens after a bankruptcy is filed. 5 Collier ¶ 1322.06 at 1322-14-15 (footnotes omitted). Accord In re Stiles, 74 B.R. 708 (Bankr.N.D.Ala.1987) (claim secured by principal residence and life insurance may be modified); In re Lapp, 66 B.R. 67 (Bankr.D.Colo.1986) (claim secured by principal residence and irrigation equipment may be modified); In re Ramirez, 62 B.R. 668 (Bankr.S.D.Cal.1986) (claim secured by property serving as principal residence and rental property may be modified); In re Baksa, 5 B.R. 184 (Bankr.N.D. Ohio 1980) (creditor cannot prevent modification by canceling security interest in automobile and" }, { "docid": "12397969", "title": "", "text": "in ascertaining whether its claim in issue here is within the scope of § 1322(b)(2). Collier rejects such reasoning in the following passage: A claim secured by any other real property or by personal property of the estate or of the debtor, or by the property of another may be modified by the chapter 13 plan. Creditors sometimes demand real property and personal property to secure the same debt. Even purchase money mortgages often take incidental security interest in appliances, furniture and other personalty. Other creditors may have security interests in other real property, rents, escrow accounts, bank accounts, motor vehicles or insurance proceeds. All such claims may be modified by a chapter 13 plan, and a creditor may not protect its claim from modification by relinquishing its other liens after a bankruptcy is filed. A claim secured by a lien other than a security interest, on real estate that is the debt- or’s principal residence, may also be modified by a chapter 13 plan. 5 COLLIER ON BANKRUPTCY, U322.06[a], at 1322-13 to 1322-14 (footnotes omitted) (emphasis added) (15th ed. 1987). The mortgages in issue in the New Jersey cases heavily relied upon by the Defendant are distinguishable on this ground. Compare In re Hynson, 66 B.R. 246, 248, 251-52 (Bankr.D.N.J.1986) (debtor stipulated that claim there was secured only by realty; court indicates acceptance of reasoning of In re Simpkins, 16 B.R. 956 (Bankr.E.D.Tenn.1982), which is distinguishable on this basis); and In re Smith, 63 B.R. 15 (Bankr.D.N.J.1986) (possibility that mortgage was not limited to real estate not considered). In addition to Simpkins, our conclusion and that of Collier is also supported by In re Morphis, 30 B.R. 589, 594 (Bankr.N.D.Ala.1983). Assuming arguendo that the Defendant was able to convince us that its claim was within the scope of § 1322(b)(2), it would nevertheless fail in convincing us that its claim could not be bifurcated pursuant to § 506(a) on the basis of our reasoning explained at length in Jablonski, supra; and Crompton, supra. We acknowledged in Crompton that Hynson and Smith reach a different conclusion than we do on" } ]

[ { "docid": "22709061", "title": "", "text": "aggravate the impairment of constitutional liberty. The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. “By limiting the power of the States to interfere with freedom of speech and freedom of inquiry and freedom of association, the Fourteenth Amendment protects all persons, no matter what their calling. But, in view of the nature of the teacher’s relation to the effective exercise of the rights which are safeguarded by the Bill of Rights and by the Fourteenth Amendment, inhibition of freedom of thought, and of action upon thought, in the case of teachers brings the safeguards of those amendments vividly into operation. Such unwarranted inhibition upon the free spirit of teachers . . . has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice ; it makes for caution and timidity in their associations by potential teachers.” Wieman v. Updegraff, 344 U. S. 183, 195 (concurring opinion). “Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate . . . .” Sweesy v. New Hampshire, 354 U. S. 234, 250. HH HH The question to be decided here is not whether the State of Arkansas can ask certain of its teachers about all their organizational relationships. It is not whether the State can. ask all of its teachers about certain of their associational ties. It is not whether teachers can be asked how many organizations they belong to, or how much time they spend in organizational activity. The question is whether the State can ask every one of its teachers to disclose every single organization with which he has been associated over a five-year period. The scope of the inquiry required by Act 10 is completely unlimited. The statute requires a teacher to reveal the church to which he belongs, or to which he has given financial support. It requires him to disclose his political party, and every political organization to which he may have contributed over a" } ]

[ { "docid": "7595598", "title": "", "text": "untactful material. Even apart from the fact that I think the majority holding is inconsistent with federal law and accepted academic practice, I believe the ruling today impermissibly burdens first amendment freedoms. The Supreme Court has repeatedly stressed the importance of preserving an atmosphere of free expression and critical inquiry in our country’s schools and universities: “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247, 251, 5 L.Ed.2d 231 (1960). A university ... is a kind of continuing Socratic conversation on the highest level ... and the thing that you must do to the uttermost possible limits is to guarantee ... [women and] men the freedom to think and to express themselves. Wieman v. Updegraff, 344 U.S. 183, 197-98, 73 S.Ct. 215, 221-22, 97 L.Ed. 216 (1952) (Frankfurter, J., concurring). See also Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Sweezy v. New Hampshire, 354 U.S. 234, 249-50, 77 S.Ct. 1203, 1211-12, 1 L.Ed.2d 1311 (1957). This circuit, too, has had a long-standing tradition of being a vigorous proponent of academic freedom. We have held that “[there is] a zone of First Amendment protection for the educational process itself, which ... must include ... students and teachers [and] ... their host institutions.” Cuesnongle v. Ramos, 713 F.2d 881, 884 (1st Cir.1983). See also Winkes v. Brown University, 747 F.2d 792, 797 (1st Cir.1984) (“Academic freedom, although not a specifically enumerated constitutional right, has long been viewed as a special concern of the First Amendment.”); Beitzell v. Jeffrey, 643 F.2d 870, 875 (1st Cir.1981) (vigorous exchange of ideas is basic function of university); Keefe v. Geanakos, 418 F.2d 359, 362 (1st Cir.1969) (warning of dangers of chilling teacher’s speech). Because of Alinovi’s dual role as student and teacher, the court's ruling has a double impact. By stripping Alinovi of her privacy rights in her paper on its submission to her professor at college, the majority holding will discourage students from engaging in critical inquiry. The" }, { "docid": "12255828", "title": "", "text": "chills their exercise of First Amendment freedoms. Plaintiffs argue that the requirement that the university report any student felony conviction within its knowledge means that all university personnel will have to report any student conviction of which they learn. This, they say, will “chill” the student-teacher associational relationship and curtail the free interchange of ideas in the academic community. The Supreme Court has said, in assessing the constitutionality of another information-gathering scheme: “ * * * It is particularly important that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as freedom of speech or press, freedom of political association, and freedom of communication of ideas, particularly in the academic community. * * * ” Sweezy v. New Hampshire, 354 U.S. 234, 245, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957) (emphasis added). As we indicated above in our discussion of overbreadth, and as Sweezy reiterates, we do not need proof of actual chilling effect in order to find a statute over-broad. However, we do not have in section (b) the same clear-cut impairment of free association or free speech that existed in cases such as Keyishian v. Board of Regents, supra, and Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960), where the courts struck down statutes as overbroad because of their unmistakable tendency to chill. There is no such unmistakable tendency under section (b). Felony convictions are a matter of public record and the student must report any such convictions to PHEAA on his application for financial aid under penalty of another felony conviction. See 24 Pa.Stat.Ann. § 5104(9). Such outside pressures will markedly reduce the likelihood that a student will be trying to hide a felony conviction. While we can be relatively certain that those students who are hiding felony convictions will be deterred from discussing them, we cannot presume that this deterrence will carry over into discussions of other topics. Not only do we have difficulty on the state of the record before us estimating whether section (b) really" }, { "docid": "22742947", "title": "", "text": "to the public, and it serves, thereby, to honor the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U. S., at 270. In striking the proper balance between the public interest in the efficient administration of justice and the First Amendment guarantee of the fullest flow of information, we must begin with the basic proposition that because of their “delicate and vulnerable” nature, NAACP v. Button, 371 U. S., at 433, and their transcendent importance for the just functioning of our society, First Amendment rights require special safeguards. A This Court has erected such safeguards when government, by legislative investigation or other investigative means, has attempted to pierce the shield of privacy inherent in freedom of association. In no previous case have we considered the extent to which the First Amendment limits the grand jury subpoena power. But the Court has said that “[t]he Bill of Rights is applicable to investigations as to all forms of governmental action. Witnesses cannot be compelled to give evidence against themselves. They cannot be subjected to unreasonable search and seizure. Nor can the First Amendment freedoms of speech, press ... or political belief and association be abridged.” Watkins v. United States, 354 U. S. 178, 188. And in Sweezy v. New Hampshire it was stated: “It is particularly important that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as freedom of speech or press, freedom of political association, and freedom of communication of ideas.” 354 U. S., at 245 (plurality opinion). The established method of “carefully” circumscribing-investigative powers is to place a heavy burden of justification on government officials when First Amendment rights are impaired. The decisions of this Court have “consistently held that only a compelling state interest in the regulation of a subject within the State’s constitutional power to regulate can justify limiting First Amendment freedoms.” NAACP v. Button, 371 U. S., at 438. And “it is an essential prerequisite to" }, { "docid": "19966827", "title": "", "text": "U.S. 479, 487 [81 S.Ct. 247, 5 L.Ed.2d 231] (1960))); Sweezy v. New Hampshire, 354 U.S. 234, 250 [77 S.Ct. 1203, 1 L.Ed.2d 1311] (1957) (a governmental enquiry into the contents of a scholar’s lectures at a state university “unquestionably was an invasion of [his] liberties in the areas of academic freedom and political expression — areas in which government should be extremely reticent to tread”). Garcetti, 547 U.S. at 438-39, 126 S.Ct. 1951 (Souter, J., dissenting). The majority opinion in Garcetti responds directly to the possible “important ramifications for academic freedom,” id. at 425, 126 S.Ct. 1951, raised by the dissenting Justices: Justice Souter suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value. There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional inter ests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching. Id. The Court in Garcetti neither refutes the existence of academic freedom as a part of the First Amendment, nor rejects the suggestion that academic freedom may extend beyond the Court’s “customary employee-speech jurisprudence.” Rather, the Court simply leaves undecided the many questions relating to the concept and breadth of academic freedom. Prudence commands that we do the same, for the dispute in this case does not raise any serious questions about the contours of academic freedom. . Academic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students, see Keyis-hian v. Board of Regents, 385 U.S., at 603 [87 S.Ct. 675, 17 L.Ed.2d 629]; Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957) (opinion of Warren, C.J.), but also, and somewhat inconsistently, on autonomous decisionmaking by the academy itself, see University of California Regents v. Bakke, 438 U.S. 265, 312, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (opinion of Powell, J.); Sweezy v. New" }, { "docid": "22742948", "title": "", "text": "cannot be compelled to give evidence against themselves. They cannot be subjected to unreasonable search and seizure. Nor can the First Amendment freedoms of speech, press ... or political belief and association be abridged.” Watkins v. United States, 354 U. S. 178, 188. And in Sweezy v. New Hampshire it was stated: “It is particularly important that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as freedom of speech or press, freedom of political association, and freedom of communication of ideas.” 354 U. S., at 245 (plurality opinion). The established method of “carefully” circumscribing-investigative powers is to place a heavy burden of justification on government officials when First Amendment rights are impaired. The decisions of this Court have “consistently held that only a compelling state interest in the regulation of a subject within the State’s constitutional power to regulate can justify limiting First Amendment freedoms.” NAACP v. Button, 371 U. S., at 438. And “it is an essential prerequisite to the validity of an investigation which intrudes into the area of constitutionally protected rights of speech, press, association and petition that the State convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.” Gibson v. Florida Legislative Investigation Committee, 372 U. S., at 546 (emphasis supplied). See also DeGregory v. Attorney General of New Hampshire, 383 U. S. 825; NAACP v. Alabama, 357 U. S. 449; Sweezy, supra; Watkins, supra. Thus, when an investigation impinges on First Amendment rights, the government must not only show that the inquiry is of “compelling and overriding importance” but it must also “convincingly” demonstrate that the investigation is “substantially related” to the information sought. Governmental officials must, therefore, demonstrate that the information sought is clearly relevant to a precisely defined subject of governmental inquiry. Watkins, supra; Sweezy, supra. They must demonstrate that it is reasonable to think the witness in question has that information. Sweezy, supra; Gibson, supra, And they must show that there is not any means of obtaining the" }, { "docid": "16101742", "title": "", "text": "a father lacked standing to challenge school district policy requiring teacher-led recitation of the Pledge of Allegiance in his daughter’s kindergarten class); Epperson, 393 U.S. at 104-08, 89 S.Ct. 266 (holding that Arkansas statutes prohibiting the teaching of evolution in public schools violated the Establishment Clause); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 223-25, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (holding that state laws requiring the reading of Bible verses and recitation of the Lord’s Prayer in public school classes violated the Establishment Clause). At oral argument, Farnan’s counsel conceded that there is no case directly on point, but argued that the general principles gleaned from the cases cited in his briefs, and from cases involving claims of hostility to religion in noneducational contexts, are sufficient to clearly establish the law. We cannot agree. The Supreme Court has long recognized the importance of protecting the “robust exchange of ideas” in education, “which discovers truth ‘out of a multitude of tongues.’ ” Keyishian v. Bd. of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967) (quoting United States v. Associated Press, 52 F.Supp. 362, 372 (S.D.N.Y. 1943)). “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding. ...” Id. (quoting Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203,1 L.Ed.2d 1311 (1957)) (internal quotation marks omitted); see also Nat’l Sch. Bds. Ass’n, School Board Policies on Academic Freedom 2, 5 (1973) (“Academic freedom is an essential for responsible teachers.... To prepare students for adult roles in a democratic society, teachers and the schools must try to maintain an atmosphere of free inquiry.”). This academic freedom will sometimes lead to the examination of controversial issues. Both parties agree that AP Euro could not be taught without discussing religion. We have no doubt that the freedom to have a frank discussion about the role of religion in history is an integral part of any advanced history course. Indeed, a collective of organizations including the American Association of School Administrators, American Federation of Teachers, National" }, { "docid": "12255829", "title": "", "text": "However, we do not have in section (b) the same clear-cut impairment of free association or free speech that existed in cases such as Keyishian v. Board of Regents, supra, and Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960), where the courts struck down statutes as overbroad because of their unmistakable tendency to chill. There is no such unmistakable tendency under section (b). Felony convictions are a matter of public record and the student must report any such convictions to PHEAA on his application for financial aid under penalty of another felony conviction. See 24 Pa.Stat.Ann. § 5104(9). Such outside pressures will markedly reduce the likelihood that a student will be trying to hide a felony conviction. While we can be relatively certain that those students who are hiding felony convictions will be deterred from discussing them, we cannot presume that this deterrence will carry over into discussions of other topics. Not only do we have difficulty on the state of the record before us estimating whether section (b) really does have any chilling effect, we have substantial difficulty estimating the government interest in acquiring information of felony convictions in this manner, for the reasons outlined above in our discussion of plaintiffs’ Fourth Amendment claims. Where there are allegations that a statute is overbroad, we must be able to determine its probable deterrent effect on speech, association or other protected activities and we must be able to determine the government’s interest in the intrusion which might justify that potential deterrence. See NAACP v. Alabama, 357 U.S. 449, 461, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); American Communications Ass’n, C. I. O. v. Douds, 339 U.S. 382, 399, 70 S.Ct. 674, 94 L.Ed. 925 (1950). We cannot make those necessary determinations on the basis of the facts before us and thus must deny plaintiffs’ motion for summary judgment on this ground as well. Plaintiffs’ other contentions of unconstitutionality essentially are mooted by our decision that the major part of section (a) is unconstitutionally vague and overbroad. We therefore need not treat them here. APPENDIX A “§" }, { "docid": "3613405", "title": "", "text": "Committee to investigate Communists in the field of education. Four Justices of the Supreme Court recently said: “It is particularly important, that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as freedom of speech or press, freedom of political association, and freedom of communication of ideas, particularly in the academic community. * * * [T]he areas of academic freedom and political expression” are “areas in which government should be extremely reticent to tread.” Two other Justices said in the same case: “These pages need not be burdened with proof, based on the testimony of a cloud of impressive witnesses, of the dependence of a free society on free universities. This means the exclusion of governmental intervention in the intellectual life of a university.” Sweezy v. State of New Hampshire, 354 U.S. 234, 245, 250, 262, 77 S.Ct. 1203, 1209, 1211, 1217, 1 L.Ed.2d 1311. The Court there held that Sweezy, a university teacher, could not constitutionally be required to answer certain questions about his political activities and connections. Barenblatt was a university teacher. He was convicted because he would not answer certain questions about his political activities and connections. Though the two cases are not identical and Sweezy does not prove that Barenblatt’s conviction violates his constitutional rights, it does show that this conviction raises serious constitutional questions. Delegation of power to a congressional committee must be construed narrowly when a narrow construction avoids serious constitutional questions. United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770. The words of the Committee’s charter, “investigations of * * * un-American propaganda activities”, need not and therefore should not be interpreted to authorize the Committee to select for investigation political activities and connections of university teachers. We must suppose that if Congress had intended to authorize such an investigation it would have done so explicitly. We need not consider whether the Committee’s questions to Barenblatt were pertinent to an investigation of Communists in the .field of education. The force of the Court’s decision in" }, { "docid": "17144135", "title": "", "text": "employment both for association which legitimately may be proscribed and for association which may not be proscribed consistently with First Amendment rights.... We therefore hold that [the challenged laws] are invalid insofar as they proscribe mere knowing membership without any showing of specific intent to further the unlawful aims of the Communist Party....” Id. at 609-10, 87 S.Ct. 675. However, to the extent that the Court did suggest that a university possesses a right to academic freedom, it did not imply that this right should trump the First Amendment rights of individual citizens. The Court balanced the professors’ need for academic freedom against the state of New York’s claim that its regulation served the “legitimate and substantial” governmental purpose of “protecting its education system from subversion.” Id. at 602, 87 S.Ct. 675. In the present case, General Bunting asks this Court to balance the Institute’s right to academic freedom, not against another state regulation, but against the constitutional rights of his students. Nothing in Keyishian suggests that a school’s right to academic freedom would reach so far. The other Supreme Court ruling to which Defendant looks is Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957), which involved a situation similar to that confronted by the Court in Keyishian. In Sweezy, the state of New Hampshire authorized its Attorney General to conduct criminal investigations into “subversive” activities. Id. at 236, 77 S.Ct. 1203. Mr. Sweezy was interrogated, largely because of a speech he had delivered at the University of New Hampshire. On First Amendment grounds, Sweezy declined to answer certain questions from the Attorney General. For example, he remained silent when asked, “Did you advocate Marxism [during your speech]? Did you express the opinion, or did you make the statement at that time that Socialism was inevitable in America?” Id. at 243-44, 77 S.Ct. 1203. There was no majority opinion in Sweezy; three justices joined Chief Justice Warren’s opinion while Justice Frankfurter wrote a separate concurrence, in which Justice Harlan joined. The language to which Defendant points is in Justice Frankfurter’s concurrence. Justice Frankfurter, noting" }, { "docid": "19966829", "title": "", "text": "Hampshire, 354 U.S., at 263 [77 S.Ct. 1203, 1 L.Ed.2d 1311] (Frankfurter, J., concurring in result). Discretion to determine, on academic grounds, who may be admitted to study, has been described as one of \"the four essential freedoms” of a university. University of California Regents v. Bakke, 438 U.S., at 312 [98 S.Ct. 2733, 57 L.Ed.2d 750] (opinion of Powell, J.) (quoting Sweezy v. New Hampshire, supra, at 263 [77 S.Ct. 1203] (Frankfurter, J., concurring in result)) (internal quotations omitted). SILBERMAN, Senior Circuit Judge, concurring: The very notion of academic freedom'— as a concept distinct from the actual textual provisions of the First Amendment — is elusive. To be sure, Supreme Court cases have on occasion referred to academic freedom. See Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957); Keyishian v. Bd. of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Univ. of Pennsylvania v. EEOC, 493 U.S. 182, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990). In Sweezy, a plurality of the Court said that a state investigation directed against a professor who refused to answer questions concerning his allegedly subversive lectures and political associations had violated due process, because the Attorney General of New Hampshire had lacked the necessary statutory authority to pursue his investigation of Sweezy. 345 U.S. at 254-55, 73 S.Ct. 656. The Court also stated that there “unquestionably [had been] an invasion of [Sweezy’s] liberties in the areas of academic freedom and political expression.” Id. at 250, 73 S.Ct. 656. Yet it is unclear what of substance, if anything, the phrase “academic freedom” added to Sweezy’s protections under the First Amendment. And it is doubtful that a professor could assert an individual constitutional right of academic freedom against his university employer, whether state or private. For that matter, it is also doubtful that a state legislature lacks authority to oversee the content of a state university’s offerings. Indeed, in Sweezy, the Court noted that the Supreme Court of New Hampshire had “carefully excluded” the possibility that the investigation had been based on the state’s interest in the" }, { "docid": "12255848", "title": "", "text": "We express no opinion as to whether such authorization is “compelled” so as to invalidate it as a waiver of any Fifth Amendment rights. . We realize that to require plaintiffs to prove directly that a student with an unreported felony conviction would be deterred from discussing other matters openly might be unreasonable, in that no such student will come forward to so testify when he could be charged with a felony for failure to report this on his PHEAA application. However, proof can be introduced by both parties which would give us a better feel for the likelihood that some speech and association might be deterred by the statute. Cf. Kennedy v. Silas Mason Co., 334 U.S. 249, 256-257, 68 S.Ct. 1031, 92 L.Ed. 1347 (1948). . An additional fact, not mentioned above, which further proof might clarify is the effectiveness of PHEAA’s application procedure in garnering information of all felony convictions of student applicants. If students rarely fail to list their convictions, this would reflect on the state’s need to have the university report such information. DITTER, District Judge (dissenting). I respectfully dissent for the following reasons: Statutes should be construed to uphold their constitutionality whenever possible. I question whether the majority has approached this case with that precept in mind. This act is part of a legislative plan to support higher education by delegating powers to an administrative agency. It should not be interpreted as though it were a penal or licensing statute. The concept of morality is not so vague that reference to a misdemeanor involving moral turpitude denies the protection of due process. Language referring to disruption and the disturbance, interference with, or prevention of the orderly affairs of an institution of higher learning is not vague in context and when tested by the requirements of due process. In considering overbreadth, the majority has adopted an overkill response which is unwarranted by the remote possibility of any chilling effect to First Amendment freedoms. Finally, I believe that this statute is susceptible of a construction that would avoid any constitutional questions. I would therefore abstain from" }, { "docid": "12255827", "title": "", "text": "of the search. We know that the invasion here is not so serious as the search of a home, but we have no proof as to the exact nature of the invasion. More importantly, plaintiffs have argued that the state has no need to “search” for this information, since it has superior alternative means for discovering any felony conviction. Plaintiffs have directed us to a statute, 28 U.S.C. § 534, which provides that the United States Attorney General shall collect crime and identification records and exchange them with authorized state officials. However, there is no evidence before us as to the extensiveness or general nature of any system which may have been established under that statute. Without facts sufficient to enable us to intelligently balance the governmental and private interests, we cannot determine the reasonableness of the alleged search and seizure and thus we must deny plaintiffs’ motion for summary judgment on this issue. The same lack of facts mandates the same result as to plaintiffs’ allegation that section (b) is overbroad in that it chills their exercise of First Amendment freedoms. Plaintiffs argue that the requirement that the university report any student felony conviction within its knowledge means that all university personnel will have to report any student conviction of which they learn. This, they say, will “chill” the student-teacher associational relationship and curtail the free interchange of ideas in the academic community. The Supreme Court has said, in assessing the constitutionality of another information-gathering scheme: “ * * * It is particularly important that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as freedom of speech or press, freedom of political association, and freedom of communication of ideas, particularly in the academic community. * * * ” Sweezy v. New Hampshire, 354 U.S. 234, 245, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957) (emphasis added). As we indicated above in our discussion of overbreadth, and as Sweezy reiterates, we do not need proof of actual chilling effect in order to find a statute over-broad." }, { "docid": "2979609", "title": "", "text": "and benefits.”). Indeed, precisely because Kehowski’s ideas fall outside the mainstream, his words sparked intense debate: Colleagues emailed responses, and Kehowski replied; some voiced opinions in the editorial pages of the local paper; the administration issued a press release; and, in the best tradition of higher learning, students protested. The Constitution embraces such a heated exchange of views, even (perhaps especially) when they concern sensitive topics like race, where the risk of conflict and insult is high. See R.A.V. v. City of St. Paul, 505 U.S. 377, 391, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched. See, e.g., Gitlow v. New York, 268 U.S. 652, 667, 45 S.Ct. 625, 69 L.Ed. 1138 (1925); id. at 673, 45 S.Ct. 625 (Holmes, J., dissenting). The right to provoke, offend and shock lies at the core of the First Amendment. This is particularly so on college campuses. Intellectual advancement has traditionally progressed through discord and dissent, as a diversity of views ensures that ideas survive because they are correct, not because they are popular. Colleges and universities — sheltered from the currents of popular opinion by tradition, geography, tenure and monetary endowments — have historically fostered that exchange. But that role in our society will not survive if certain points of view may be declared beyond the pale. “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967) (quoting Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957)). We have therefore said that “[t]he desire to maintain a sedate academic environment ... [does not] justify limitations on a teacher’s freedom to express himself on political issues in vigorous, argumentative," }, { "docid": "22901916", "title": "", "text": "v. Board of Regents of University of New York, 385 U. S. 589, 603 (1967), and that protecting the free exchange of ideas within our schools is of profound importance in promoting an open society. See, e. g., Healy v. James, 408 U. S. 169, 180-181 (1972); Shelton v. Tucker, 364 U. S. 479, 487 (1960); Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957). Recognizing that in our society “[t]he classroom is peculiarly the ‘marketplace of ideas,’” Keyishian v. Board of Regents, 385 U. S., at 603, we have not hesitated to strike down laws that effectively inhibit the free discussion of novel or controversial ideas, see, e. g., ibid.; Shelton v. Tucker, supra, or that directly prohibit the teaching of unpopular subject matter. Epperson v. Arkansas, 393 U. S. 97, 107 (1968). This First Amendment freedom to explore novel or controversial ideas in the classroom is closely linked to the freedom of faculty members to express their views to the administration concerning matters of academic governance. If the First Amendment is truly to protect the “free play of the spirit” within our institutions of higher learning, Shelton v. Tucker, supra, at 487, then the faculty at those institutions must be able to participate effectively in the discussion of such matters as, for example, curriculum reform, degree requirements, student affairs, new facilities, and budgetary planning. The freedom to teach without inhibition may be jeopardized just as gravely by a restriction on the faculty’s ability to speak out on such matters as by the more direct restrictions struck down in Keyishian and in Epperson. In my view, therefore, a direct prohibition of some identified faculty group from submitting their views concerning academic policy questions for consideration by college administrators would plainly violate the principles of academic freedom enshrined in the First Amendment. The basis of the second right — the right to be free from compelled associations — is found in our conviction that individuals may not be forced to join or support positions or views which they find objectionable on moral, ideological, or personal grounds. See, e. g.," }, { "docid": "22036949", "title": "", "text": "with respect to the State of Virginia is, as appears from the record, equally applicable here: “We cannot close our eyes to the fact that the militant Negro civil rights movement has engendered the intense resentment and opposition of the politically dominant white community . . . .” 371 U. S., at 435. Of course, a legislative investigation — as any investigation — must proceed “step by step,” Barenblatt v. United States, supra, 360 U. S., at 130, but step by step or in totality, an adequate foundation for inquiry must be laid before proceeding in such a manner as will substantially intrude upon and severely curtail or inhibit constitutionally protected activities or seriously interfere with similarly protected associational rights. No such foundation has been laid here. The respondent Committee has failed to demonstrate the compelling and subordinating governmental interest essential to support direct inquiry into the membership records of the N. A. A. C. P. Nothing we say here impairs or denies the existence of the underlying legislative right to investigate or legislate with respect to subversive activities by Communists or anyone else; our decision today deals only with the manner in which such power may be exercised and we hold simply that groups which themselves are neither engaged in subversive or other illegal or improper activities nor demonstrated to have any substantial connections with such activities are to be protected in their rights of free and private association. As declared in Sweezy v. New Hampshire, 354 U. S. 234, 245 (opinion of The Chief Justice), “It is particularly important that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as freedom of speech or press, freedom of political association, and freedom of communication of ideas . . . To permit legislative inquiry to proceed on less than an adequate foundation would be to sanction unjustified and unwarranted intrusions into the very heart of the constitutional privilege to be secure in associations in legitimate organizations engaged in the exercise of First and Fourteenth Amendment rights;" }, { "docid": "22036950", "title": "", "text": "respect to subversive activities by Communists or anyone else; our decision today deals only with the manner in which such power may be exercised and we hold simply that groups which themselves are neither engaged in subversive or other illegal or improper activities nor demonstrated to have any substantial connections with such activities are to be protected in their rights of free and private association. As declared in Sweezy v. New Hampshire, 354 U. S. 234, 245 (opinion of The Chief Justice), “It is particularly important that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as freedom of speech or press, freedom of political association, and freedom of communication of ideas . . . To permit legislative inquiry to proceed on less than an adequate foundation would be to sanction unjustified and unwarranted intrusions into the very heart of the constitutional privilege to be secure in associations in legitimate organizations engaged in the exercise of First and Fourteenth Amendment rights; to impose a lesser standard than we here do would be inconsistent with the maintenance of those essential conditions basic to the preservation of our democracy. The judgment below must be and is Reversed. The prefatory portions of the statute noted the existence of the predecessor committees, recited that the 1957 committee had “been prevented” from conducting its investigations by “the deliberate and almost unanimous action of the witnesses before it in resorting to litigation to frustrate said committee’s investigations” and asserted that as a result the committee was “mired down” in numerous lawsuits; the committees’ records and reports were said to disclose “a great abuse of the judicial processes,” as well as violent or illegal conduct, or the threat thereof, and Communist attempts to “agitate and engender ill-will between the races.” The enactment concluded that “there still exists the same grave and pressing need for such a committee to exist ... to continue and complete the above two committees’ work, and to participate in and contest the efforts represented by the above referred to" }, { "docid": "3613404", "title": "", "text": "delegated to them, i. e., to acquire certain data to be used by the House or the Senate in coping with a problem that falls within its legislative sphere. No witness can be compelled to make disclosures on matters outside that area.” [354 U.S. at page 206, 77 S.Ct. at page 1189.] In summary: (1) The “instructions to an investigating committee [must] spell out that group’s jurisdiction and purpose with sufficient particularity.” (2) “It would be difficult to imagine a less explicit authorizing resolution * * *. No one could reasonably deduce from the charter the kind of investigation that the Committee was directed to make.” (3) “No witness can be compelled to make disclosures on matters outside that area.” Since Congress did not define-that area, there can be no proof that the Committee’s questions were within it. It follows that the defendant must be acquitted. Even if, contrary to my clear understanding of Watkins, Congress did “with sufficient particularity” authorize the Committee to investigate something, it by no means follows that Congress authorized the Committee to investigate Communists in the field of education. Four Justices of the Supreme Court recently said: “It is particularly important, that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as freedom of speech or press, freedom of political association, and freedom of communication of ideas, particularly in the academic community. * * * [T]he areas of academic freedom and political expression” are “areas in which government should be extremely reticent to tread.” Two other Justices said in the same case: “These pages need not be burdened with proof, based on the testimony of a cloud of impressive witnesses, of the dependence of a free society on free universities. This means the exclusion of governmental intervention in the intellectual life of a university.” Sweezy v. State of New Hampshire, 354 U.S. 234, 245, 250, 262, 77 S.Ct. 1203, 1209, 1211, 1217, 1 L.Ed.2d 1311. The Court there held that Sweezy, a university teacher, could not constitutionally be required to answer" }, { "docid": "19966828", "title": "", "text": "case involving speech related to scholarship or teaching. Id. The Court in Garcetti neither refutes the existence of academic freedom as a part of the First Amendment, nor rejects the suggestion that academic freedom may extend beyond the Court’s “customary employee-speech jurisprudence.” Rather, the Court simply leaves undecided the many questions relating to the concept and breadth of academic freedom. Prudence commands that we do the same, for the dispute in this case does not raise any serious questions about the contours of academic freedom. . Academic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students, see Keyis-hian v. Board of Regents, 385 U.S., at 603 [87 S.Ct. 675, 17 L.Ed.2d 629]; Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957) (opinion of Warren, C.J.), but also, and somewhat inconsistently, on autonomous decisionmaking by the academy itself, see University of California Regents v. Bakke, 438 U.S. 265, 312, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (opinion of Powell, J.); Sweezy v. New Hampshire, 354 U.S., at 263 [77 S.Ct. 1203, 1 L.Ed.2d 1311] (Frankfurter, J., concurring in result). Discretion to determine, on academic grounds, who may be admitted to study, has been described as one of \"the four essential freedoms” of a university. University of California Regents v. Bakke, 438 U.S., at 312 [98 S.Ct. 2733, 57 L.Ed.2d 750] (opinion of Powell, J.) (quoting Sweezy v. New Hampshire, supra, at 263 [77 S.Ct. 1203] (Frankfurter, J., concurring in result)) (internal quotations omitted). SILBERMAN, Senior Circuit Judge, concurring: The very notion of academic freedom'— as a concept distinct from the actual textual provisions of the First Amendment — is elusive. To be sure, Supreme Court cases have on occasion referred to academic freedom. See Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957); Keyishian v. Bd. of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Univ. of Pennsylvania v. EEOC, 493 U.S. 182, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990). In Sweezy, a plurality of the Court said that a" }, { "docid": "12255847", "title": "", "text": "found by a court of record to be unconstitutional and void, the remaining provisions of the law shall, nevertheless, remain valid, unless the court finds the valid provisions of the law are so essentially and inseparably connected with, and so depend upon, the void provision, that it cannot be presumed the Legislature would have enacted the remaining valid provisions without the void ones; or unless the court finds the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.” 40 Pa.Stat.Ann. § 555. Legislative history and the content of the statute itself indicate that the legislature wanted students who had committed felonies to be reported to PHEAA. The statute is not as broad as it was with the unconstitutional provisions, but it stands independent and complete, makes sense and accords with legislative intent. The unconstitutional segments of subsection (a) should thus be severed from the rest of the statute. Cf. State Board of Chiropractic Examiners v. Life Fellowship, 441 Pa. 293, 272 A.2d 478 (1971). . We express no opinion as to whether such authorization is “compelled” so as to invalidate it as a waiver of any Fifth Amendment rights. . We realize that to require plaintiffs to prove directly that a student with an unreported felony conviction would be deterred from discussing other matters openly might be unreasonable, in that no such student will come forward to so testify when he could be charged with a felony for failure to report this on his PHEAA application. However, proof can be introduced by both parties which would give us a better feel for the likelihood that some speech and association might be deterred by the statute. Cf. Kennedy v. Silas Mason Co., 334 U.S. 249, 256-257, 68 S.Ct. 1031, 92 L.Ed. 1347 (1948). . An additional fact, not mentioned above, which further proof might clarify is the effectiveness of PHEAA’s application procedure in garnering information of all felony convictions of student applicants. If students rarely fail to list their convictions, this would reflect on the state’s need to have the university" }, { "docid": "9925286", "title": "", "text": "in which Appellees claim “[t]he Supreme Court first adopted the principle of academic freedom.” Brief of the Appellees at 21. Sweezy arose from an investigation of “subversive activities” by the New Hampshire Attorney General. Paul Sweezy, a target of the investigation, refused to answer certain questions regarding a guest lecture he had given at the University of New Hampshire. His refusal to answer these and other questions ultimately resulted in his incarceration for contempt. On certiorari review of the decision of the New Hampshire Supreme Court affirming the conviction, a plurality of four justices indicated that the action of the state “unquestionably” infringed Sweezy’s “liberties in the areas of academic freedom and political expression.” Sweezy, 354 U.S. at 250, 77 S.Ct. 1203. The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die. Id. This paean to academic freedom notwithstanding, the plurality did not vacate Sweezy’s contempt conviction on First Amendment grounds, but rather concluded that because the Attorney General lacked authority to investigate Sweezy, the conviction violated due process. See id. at 254-55, 77 S.Ct. 1203. Justice Frankfurter, who along with Justice Harlan provided the votes necessary to reverse, relied explicitly on academic freedom in concluding that Sweezy’s contempt conviction offended the Constitution. The right recognized by Justice Frankfurter, however, was not the individual right claimed by Appellees, but rather an institutional right belonging to the University of New Hampshire: “When weighed against the" } ]

[ { "docid": "23647844", "title": "", "text": "statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.\" . In the past, we have used the planning level/ operational level dichotomy when analyzing the application of the discretionary function exception. See Nevin v. United States, 696 F.2d 1229 (9th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 70, 78 L.Ed.2d 84 (1983); Olsen v. Mexico, 729 F.2d 641 (9th Cir.), cert. denied, — U.S. -, 105 S.Ct. 295, 83 L.Ed.2d 230 (1984); Grunnet v. United States, 730 F.2d 573 (9th Cir.1984). Courts and commentators have stated that the use of the planning level/operational level distinction is either two simplistic, or too complicated and specious. See generally Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967); Note, The Discretionary Function Exception: Is it a Bar to Federal Jurisdiction?, 1983 Utah L.Rev. 117 (1983); Note, Federal Tort Claims Act: The Development and Application of the Discretionary Function Exemption, 13 Cum. L.Rev. 535 (1982/1983). In recognition of the problems that surround the application of the discretionary function exception, and in light of the Supreme Court's recent decision in Varig, we believe that the proper approach to determining when the exception applies is for the court to look to the nature of the conduct in question. . We believe that the decision here exemplifies the type of decision in the hypothetical given by the district court below. Suppose a high-level decision maker says, ‘International pressures make open-air atomic testing highly necessary. Time is of the essence. We know as a result of such testing some people are going to get hurt. We can’t tell them they are going to get hurt. We can’t even warn them what to do to minimize or prevent the hurt. In order to preserve our way of life some people unknown to them and unknown to us are going to" } ]

[ { "docid": "10001794", "title": "", "text": "as in this case. Until Congress amends the discretionary function exception to the FTCA or passes a specific relief bill for individual victims, we have no choice but to leave them uncompensated. I must therefore concur in the majority opinion which has carefully reviewed and applied the controlling law to the facts of this case. . See The Atomic Energy Act of 1946, ch. 724, 60 Stat. 755 and The Atomic Energy Act of 1954, ch. 1073, 68 Stat. 921 (codified as amended at 42 U.S.C. §§ 2011-2296 (1982 & Supp. Ill 1985)). For detailed discussion of the two act's safety provisions, see Allen v. United States, 588 F.Supp. 247, 348-50 (D.Utah 1984). . If the evidence had demonstrated such deviation or negligent implementation, neither Varig Airlines nor Dalehite would bar our review. Both those cases confirm that conformity to a discretionary plan insulates the governmental action from review. See Dalehite, 346 U.S. at 36, 73 S.Ct. at 968 (\"It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable.”); Varig Airlines, 467 U.S. at 820, 104 S.Ct. at 2767 (acts of FAA employees immune from review because dictated by immune policy-based program). Deviation from an immune plan or negligent implementation of an immune plan, however, can strip the action of the discretionary function exception, for such governmental action does not involve the type of social, economic, or political policy considerations at the core of the exception. . At one point in their brief,- plaintiffs state that the test manager “authorized [the radsafety] officers to go beyond the information radsafety plans.” Brief for the Appellee at 57. In other words, the test manager authorized the officers to deviate from the plan. Plaintiff argues that because the officers were so authorized, their failure to deviate from the plan subjects the Government to liability. This reasoning is at direct odds with Varig Airlines and Ddlehite. See supra note 2. It is just such deviation from a discretionary plan that can deprive the action of the protection of the discretionary function exception." }, { "docid": "18598353", "title": "", "text": "(8th Cir.1980); Clayton v. Pazcoquin, 529 F.Supp. 245, 247-49 (W.D.Pa.1981). In the absence of such compliance, a district court has no subject matter jurisdiction over the plaintiff’s claim. Wyler v. United States, 725 F.2d 156, 159 (2d Cir.1983). Plaintiffs’ complaint does not allege that the filing requirements of section 2401(b) were complied with. Moreover, it appears to be conceded that Mrs. Fraticelli did not file a claim for her husband’s death. Because of Mrs. Fraticelli’s failure to file, her complaint against the United States should have been dismissed for lack of jurisdiction. Gallick v. United States, 542 F.Supp. 188, 191 (M.D. Pa. 1982). However, the Government concedes that Oshita and Takatsuki filed» claims, and therefore the complaint could be amended upon remand to allege that fact. Accordingly, we will assume an amendment and address their claims on the merits. A well-recognized exception to the Government’s waiver of immunity for tort liability is the “discretionary function” exception found in 28 U.S.C. § 2680(a). The governmental acts of which the Hawaiian plaintiffs complain fall within this exception. It cannot be seriously contended that the decision to use Agent Orange as a defoliant was anything but a discretionary act. In pursuance of this decision, the Government entered into a contract with the University of Hawaii to perform field tests with the herbicide. Plaintiffs, who claim to have been injured during the course of those field tests, cannot remove them from the category of discretionary functions by vague and irrelevant allegations of negligent labeling, shipping, handling, etc. See Dalehite v. United States, 346 U.S. 15, 37-45, 73 S.Ct. 956, 969-72, 97 L.Ed. 1427 (1953); First National Bank in Albuquerque v. United States, 552 F.2d 370, 374-77 (10th Cir.), cert. denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977). The Supreme Court’s holding in Dalehite is summarized well in United States v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 810-11, 104 S.Ct. 2755, 2762-63, 81 L.Ed.2d 660 (1984), where Chief Justice Burger, writing for the Court, said: Dalehite involved vast claims for damages against the United States arising" }, { "docid": "22430137", "title": "", "text": "the fertilizer. The Court held this decision to be protected by the discretionary function exception. 346 U.S. at 42, 73 S.Ct. 956. Yet, considering the criteria recounted in note 20 supra, it is not immediately apparent how the considerations going into the labeling decision were truly critical to the over-all practicability of the program, see 346 U.S. at 42, 73 S.Ct. 956, or why the decision depended on such “policy” considerations that it could not properly be reviewed by the courts, see id at 34-36, 73 S.Ct. 956, which after all are experienced in dealing with common law negligence and the duty to warn of hazardous conditions. But cf. First National Bank v. United States, 552 F.2d 370, 375-76 (10th Cir.) (Involving agency approval of fungicide label under statutory standard that label must contain statements “necessary and, if complied with, adequate to prevent injury.” “To enforce these standards, and give content and meaning to them, the agency was required to make policy judgments in evaluating the adequacy of the labeling.” Such judgments were held to be within the exception.), cert, denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977). An interpretation of Dalehite that approves an expansive view of the discretionary function exception is buttressed by the Court’s selection of pre-Dalehite lower court casdl that interpreted the discretionary function .exception “in conformity” with the Dalehite holding “that negligence in policies or plans for authorized governmental activities cannot support damage suits.” 346 U.S. at 36 n. 32, 73 S.Ct. at 968. For example, one of the cases approvingly cited in this connection, id., was Olson v. United States, 93 F.Supp. 150 (D.N.D.1950), which held that deciding when and how much water to release from a dam was within the exception. In doing so, Olson equated “judgment” in the sense of making a conscious decision with “discretion” in the sense it is used in the FTCA. 93 F.Supp. at 152-53 (“When flood waters are to be released and how much water is to be released certainly calls for the exercise of judgment; in other words, the performance of a discretionary" }, { "docid": "23333410", "title": "", "text": "FTCA for breaching this non-delegable duty. Gardner, 780 F.2d at 837. This case is clearly distinguishable. The discretionary function exception was not raised nor discussed. Furthermore, It is irrelevant to the discretion issue whether the AEC or its employees were negligent in failing to adequately protect the public. See Cisco v. United States, 768 F.2d 788, 789 (7th Cir.1985); General Public Utilities Corp. v. United States, 745 F.2d 239, 243, 245 (3d Cir.1984), cert. denied, 469 U.S. 1228, 105 S.Ct. 1227, 84 L.Ed.2d 365 (1985). [ ] When the conduct at issue involves the exercise of discretion by a government agency or employee, § 2680(a) preserves governmental immunity ‘whether or not the discretion involved be abused.’ ” Allen v. United States, 816 F.2d 1417 (10th Cir.1987) (footnotes omitted). See also Cunningham v. United States, 786 F.2d 1445 (9th Cir.1986) (negligent failure to inspect falls within discretionary function exception — “When an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind.” (quoting Varig, 467 U.S. at 819-20, 104 S.Ct. at 2767)). Furthermore, the Act is specifically limited to claims “for injury, loss of property, personal injury, or death due to exposure to radiation based on acts or omissions by a contractor in carrying out an atomic weapons testing program under a contract with the United States.” 42 U.S.C. § 22Í2(a)(l) (emphasis added). Section 2212 is not designed to cover the negligence of the government itself.] “Accordingly, [Appellants’] claims based on failures to take adequate safety precautions at tests must be dismissed, [footnote omitted]. [b]. Claims Based on the Government’s Failure to Issue Warnings Prior to 1977. “[Appellants’] second category of claims is based on the breach of the government’s alleged duty to warn [appellants] of the dangers to which they had been exposed or to monitor test participants for health problems resulting from radiation exposure. [This court] has postulated that California courts would impose a duty on the government to warn test participants of the dangers to which they have been exposed. See Molsbergen" }, { "docid": "22430174", "title": "", "text": "is medical malpractice, and the fact that it was committed by federal officers pursuant to a regulatory activity is insufficient by itself to insulate the government from tort liability under the FTCA. [T]he statute and regulations governing the delicensing procedure do not appear to convey discretion to identify and consider public safety goals. The only discretion apparently contemplated is that inherent in the judgments of any medical doctor in private practice. Id. Thus, under the Hendry analysis, evaluation and pursuit of public safety goals undertaken in a programmatic context is one thing; adherence to professional or scientific norms is altogether another for purposes of the discretionary function exception. Compare Griffin, 500 F.2d at 1066 n,16A (“The function of DBS was not ... to determine whether lots were ‘safe for release to the public.’ Its specific duty under the regulation was to ascertain whether the neurovirulence standard of the regulation had been met.”) with First National Bank v. United States, 552 F.2d 370, 375-76 (10th Cir.) (approval of fungicide label under statutory standard that label must contain statements “necessary and, if complied with, adequate to prevent injury”; “To enforce these standards, and give content and meaning to them, the agency was required to make policy judgments in evaluating the adequacy of the labeling.”), cert, denied,-U.S.-, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977). See also United States v. DeCamp, 478 F.2d 1188 (9th Cir. 1973). In DeCamp, the Army Corps of Engineers decided not to require safety canopies on bulldozers used by a contractor engaged in removal and disposal of debris. A tree fell and killed a bulldozer operator; the trial court found that the accident would not have occurred had the bulldozer been equipped with a canopy guard. Addressing the discretionary function question, the Ninth Circuit followed Hendry in observing that “the decision . was not predicated upon considerations of public policy but upon general standards of safety. Accordingly, state tort law can capably measure the reasonableness of the engineer’s judgment in applying professional standards of safety.” 478 F.2d at 1192. . Thus, the Griffin analysis focuses on the nature of" }, { "docid": "23333426", "title": "", "text": "835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977) (decision by Department of Agriculture whether label on fungicide complied with statutory requirement that it contain a warning \"necessary and if complied with adequate to prevent injury\" fell within discretionary function exception). . See Allen v. United States, 588 F.Supp. 247, 337-40 (D.Utah 1984). [The district court's decision in Allen was overturned by the Tenth Circuit in Allen v. United States, 816 F.2d 1417 (10th Cir.1987). In that opinion, the Tenth Circuit specifically rejected the District oof Utah District Court’s “deliberate choice” or \"conscious decision\" analysis which was heavily relied upon by the appellants in this case. The Tenth Circuit held: It is also irrelevant whether the alleged failure to warn was a matter of \"deliberate choice,\" or a mere oversight. See Allen, 588 F.Supp. at 337-38. We agree with the treatment of this distinction in Myslakowski v. United States, 806 F.2d 94 (6th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1608, 94 L.Ed.2d 793 (1987): \"The critical error in the trial court’s analysis is in its conclusion that because the evidence does not show that the departmental policymakers evaluated the pros and cons of requiring that a warning be given concerning the rollover propensity of the jeep and then made a discretionary decision not to give such warnings, it therefore follows that no discretionary decision, of the kind contemplated by § 2680(a), was made____ Stated otherwise, even the negligent failure of a discretionary government policymaker to consider all relevant aspects of a subject matter under consideration does not vitiate the discretionary character of the decision that is made. Indeed, it is, in part, to provide immunity against liability for the consequences of negligent failure to consider the relevant, even critical, matters in discretionary decisionmaking that the statutory exception exists. If it were otherwise, a judgment-based policy determination made at the highest levels, to which all would concede that the. statutory exception applies (the decision to sell surplus jeeps), would result in no immunity if the decision could be shown to have been made without consideration of important, relevant factors, or" }, { "docid": "18598354", "title": "", "text": "It cannot be seriously contended that the decision to use Agent Orange as a defoliant was anything but a discretionary act. In pursuance of this decision, the Government entered into a contract with the University of Hawaii to perform field tests with the herbicide. Plaintiffs, who claim to have been injured during the course of those field tests, cannot remove them from the category of discretionary functions by vague and irrelevant allegations of negligent labeling, shipping, handling, etc. See Dalehite v. United States, 346 U.S. 15, 37-45, 73 S.Ct. 956, 969-72, 97 L.Ed. 1427 (1953); First National Bank in Albuquerque v. United States, 552 F.2d 370, 374-77 (10th Cir.), cert. denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977). The Supreme Court’s holding in Dalehite is summarized well in United States v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 810-11, 104 S.Ct. 2755, 2762-63, 81 L.Ed.2d 660 (1984), where Chief Justice Burger, writing for the Court, said: Dalehite involved vast claims for damages against the United States arising out of a disastrous explosion of ammonium nitrate fertilizer, which had been produced and distributed under the direction of the United States for export to devastated areas occupied by the Allied Armed Forces after World War II. Numerous acts of the Government were charged as negligent: the cabinet-level decision to institute the fertilizer export program, the failure to experiment with the fertilizer to determine the possibility of explosion, the drafting of the basic plan of manufacture, and the failure properly to police the storage and loading of the fertilizer. The Court concluded that these allegedly negligent acts were governmental duties protected by the discretionary function exception and held the action barred by § 2680(a). In Varig, the Court held that the failure of Federal Aviation Administration employees to check certain potentially dangerous items in certifying the safety of an airplane was the exercise of a discretionary function for which the Government was not liable. 467 U.S. at 820, 104 S.Ct. at 2767. These two decisions teach us that, where, as here, the Government is performing" }, { "docid": "10001760", "title": "", "text": "the two-year statute of limitations in 28 U.S.C. § 2401(b). We do not discuss the last three issues, because we agree that the discretionary function exception precludes government liability. The district court opinion states the facts fully. See Allen, 588 F.Supp. at 337-38, 348-50, 358-404. The authority for federal atomic bomb tests came from the Atomic Energy Act of 1946, Pub.L. No. 585, 60 Stat. 755 (“the 1946 Act”). See Atomic Energy Act of 1954, 42 U.S.C. §§ 2011-2296 (present version of atomic energy statutes). Under the 1946 Act, the Atomic Energy Commission (AEC) received broad discretionary power to “conduct experiments ... in the military application of atomic energy.” 1946 Act, § 6(a); see 42 U.S.C. § 2121(a) (same authority in present statutes). The AEC was authorized to carry on such experiments “only to the extent that the express consent and direction of the President of the United States has been obtained, which consent and direction shall be obtained at least once each year.” Id. Additionally, the AEC was “authorized and directed to make arrangements ... for ... the protection of health during research and production activities.” 1946 Act, § 3(a). These arrangements were to “contain such provisions to protect health, to minimize danger from explosion and other hazards to life or property ... as [the AEC] may determine.” Id.; see 42 U.S.C. §§ 2012(d)-(e), 2013(d), 2051(d) (similar provisions in present statutes). In 1950 the AEC chose an area in Nevada as a testing site. The President approved this choice. Thereafter, between 1951 and 1962, eight series of open-air tests were conducted, with the President approving each series of tests. Over one hundred atomic bombs were detonated. Each test explosion was executed according to detailed plans which the AEC officially reviewed and adopted. Separate plans for protecting the public, and for providing the public with appropriate information, were also adopted by the AEC. To actually execute the plans, however, the AEC delegated some of its authority. The AEC selected a “Test Manager” for each test series, who had some day-to-day discretion. The Test Manager could, for example, postpone a given" }, { "docid": "10001759", "title": "", "text": "LOGAN, Circuit Judge. In this action under the Federal Tort Claims Act, see 28 U.S.C. §§ 1346(b), 2401(b), 2671-80, nearly 1200 named plaintiffs have sued the United States, alleging some 500 deaths and injuries as a result of radioactive fallout from open-air atomic bomb tests held in Nevada in the 1950s and 1960s. The district court selected and tried twenty-four “bellwether” claims, in order to find a common framework for the rest. See Allen v. United States, 588 F.Supp. 247, 258 (D.Utah 1984). The court entered final judgment in favor of the government on fourteen of these claims and against the government on nine, leaving one claim outstanding. Id. at 446-47. It then granted a Fed.R.Civ.P. 54(b) motion permitting the government to appeal those claims resolved against it. On appeal the government contends that (1) the “discretionary function” exception in 28 U.S.C. § 2680(a) precludes government liability; (2) the government did not breach any duty owed to the public; (3) the government did not cause plaintiffs’ injuries; and (4) the plaintiffs’ claims were barred by the two-year statute of limitations in 28 U.S.C. § 2401(b). We do not discuss the last three issues, because we agree that the discretionary function exception precludes government liability. The district court opinion states the facts fully. See Allen, 588 F.Supp. at 337-38, 348-50, 358-404. The authority for federal atomic bomb tests came from the Atomic Energy Act of 1946, Pub.L. No. 585, 60 Stat. 755 (“the 1946 Act”). See Atomic Energy Act of 1954, 42 U.S.C. §§ 2011-2296 (present version of atomic energy statutes). Under the 1946 Act, the Atomic Energy Commission (AEC) received broad discretionary power to “conduct experiments ... in the military application of atomic energy.” 1946 Act, § 6(a); see 42 U.S.C. § 2121(a) (same authority in present statutes). The AEC was authorized to carry on such experiments “only to the extent that the express consent and direction of the President of the United States has been obtained, which consent and direction shall be obtained at least once each year.” Id. Additionally, the AEC was “authorized and directed to make arrangements" }, { "docid": "23333375", "title": "", "text": "conditions, and the risks of injury inherent in any large-scale military operation. “The need to balance risks against test objectives was particularly acute in tests involving troop maneuvers. These tests were intended to expose troops to battlefield conditions to test psychological reactions and protective measures. The location and movement of those troops was a subject of controversy between the AEC and military commanders. It was recognized that the desire of the military to expose troops to realistic combat conditions could interfere with the AEC’s weapons testing objectives. The arrangements ultimately incorporated in the Operation Plans represented an accommodation of these divergent requirements by the AEC and military officials. In later tests, involving large scale military maneuvers under battlefield conditions, these considerations led to delegation of responsibility for radiological and physical safety of troops to the military commanders. II. DISCUSSION A. Motions to Substitute — 42 U.S.C. § 2212 1. The Provisions and Effect of § 2212 “In October 1984, Congress adopted § 1631 of the Department of Energy National Security and Military Applications of Nuclear Energy Authorization Act of 1985, (the ‘Act’), codified at 42 U.S.C. § 2212. It provides that an action against the United States shall be the exclusive remedy for injuries ‘due to exposure to radiation based on acts or omissions by a contractor in carrying out an atomic weapons testing program under a contract with the United States’, § 2212(a)(1), and requires any action against these contractors to be maintained solely against the United States pursuant to the FTCA. The Act applies to alleged acts or omissions of contractors ‘without regard to when the act or omission occurred.’ § 2212(a)(2). The Act provides, in pertinent part, that: A contractor against whom a civil action or proceeding described in subsection (a) ... is brought shall promptly deliver all processes served upon that contractor to the Attorney General of the United States. Upon certification by the Attorney General that the suit against the contractor is within the provisions of subsection (a) ..., a civil action or proceeding commenced in a State court shall be removed without bond at" }, { "docid": "408664", "title": "", "text": "it may be, whether the Army substantially endangered Plaintiffs’ health and welfare is irrelevant to the discretionary function determination. The question is not whether the Army fell short in its efforts to attain the general health and safety goals of CERCLA, but whether the Army’s shortcomings involved violations of specific, mandatory directives. And the health and safety provisions cited by the Plaintiffs are not such specific and mandatory directives. We rejected a similar argument in Allen v. United States, 816 F.2d 1417 (10th Cir.1987), cert. denied, 484 U.S. 1004, 108 S.Ct. 694, 98 L.Ed.2d 647 (1988), the case relied on but not elaborated on by the district court. The Allen plaintiffs complained of injuries caused by fallout from open-air atomic and nuclear weapons testing. The Atomic Energy Commission (AEC) had carried out the open-air tests pursuant to the Atomic Energy Act of 1946, Pub.L. No. 585, 60 Stat. 755, in which “Congress ... repeatedly evinced the general intent that the tests should be conducted so as not to jeopardize the health and safety of the population downwind.” Id. at 1425 (McKay, J., concurring). Critical to the holding, however, was that Congress had left it to the Atomic Energy Commission to determine how to attain this public health and safety goal. Id. at 1421 (citing Varig Airlines, 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660, wherein it was left to the Secretary of Transportation and the Federal Aviation Administration to determine how to attain general safety goals). The Allen plaintiffs were unable “to point to a single instance in which [AEC] personnel ignored or failed to implement specific [directives].” Id. Instead, their “entire case rest[ed] on the fact that the government could have made better plans.” Id. at 1424. In light of the policies which underlay the plans — public safety and national security — we refused to “second-guess” the AEC and held that the discretionary function exception barred suit. Id. (citing Varig Airlines, 467 U.S. at 814, 104 S.Ct. at 2764). See also Kennewick Irrigation District v. United States, 880 F.2d 1018, 1026 (9th Cir.1989) (“A general statutory duty" }, { "docid": "10001768", "title": "", "text": "that, even if the initial discretion granted the AEC by statute was broad, test site personnel violated the AEC’s own policy directives by failing to implement adequate protective measures. We cannot accept this argument either. Neither the plaintiffs nor the district court have been able to point to a single instance in which test site personnel ignored or failed to implement specific procedures mandated by the AEC for monitoring and informing the public. Indeed, the district court’s conclusions appear to be based, at least in part, on perceived inadequacies in the AEC’s radiological safety and information plans themselves. The court relied heavily on a 1954 report to the AEC by the Committee to Study Nevada Proving Grounds which was moderately critical of the measures taken up to that point to inform and warn the public. See Allen, 588 F.Supp. at 386-90, 392-93. The stated objective of this report, however, was “[t]o be a basis for Commission decisions on future policy.” Pl.Ex. at 4. The operational plans the district court considered deficient embody those AEC policy decisions. As such, these plans clearly fall within the discretionary function exception. Government liability cannot logically be predicated on the failure of test-site personnel to go beyond what the operational plans specifically required them to do. If, as the plaintiffs maintain, the AEC delegated “unfettered authority” to a Test Manager and his subordinates to implement public safety programs, this simply compels the conclusion that those officers exercised considerable discretion. Their actions, accordingly, also fall within the discretionary function exception. It is irrelevant to the discretion issue whether the AEC or its employees were negligent in failing to adequately protect the public. See Cisco v. United States, 768 F.2d 788, 789 (7th Cir.1985); General Public Utilities Corp. v. U.S., 745 F.2d 239, 243, 245 (3d Cir.1984), cert. denied, 469 U.S. 1228, 105 S.Ct. 1227, 84 L.Ed.2d 365 (1985). When the conduct at issue involves the exercise of discretion by a government agency or employee, § 2680(a) preserves governmental immunity “whether or not the discretion involved be abused.” For better or worse, plaintiffs here “obtain their ‘right" }, { "docid": "1549464", "title": "", "text": "that the alleged acts of negligence were the result of a balancing of competing policy considerations by on-site officials who had been entrusted with the power to engage in such discretionary decisionmaking. We said, “The responsibility for carrying out the Safety Plan was assigned to the officials in charge of the tests who had discretion to adopt and modify the Plan as necessary to achieve the objectives of the test.” Id. at 995 (emphasis added). In rejecting the claims arising from decisions by military commanders, we particularly relied on the following facts: The need to balance risks against test objectives was particularly acute in tests involving troop maneuvers.... It was recognized that the desire of the military to expose troops to realistic combat conditions could interfere with the AEC’s weapons testing objectives. The arrangements ultimately incorporated in the Operations Plans represented an accommodation of these divergent requirements by the AEC and military officials. In later tests, involving large scale military maneuvers under battlefield conditions, these considerations led to delegation of responsibility for radiological and physical safety of troops to the military commanders. Id. at 986 (emphasis added). In further holding that the government’s failure to issue warnings was also covered by the discretionary function exception, we also relied on the fact that the decision whether to issue warnings involved the weighing of competing policy consideration. Quoting Dalehite, we said, “ ‘Where there is policy judgment and decision there is discretion.’ ” Id. at 998 (quoting Dalehite, 346 U.S. at 36, 73 S.Ct. at 968). Thus, in Atmospheric Testing, the acts of alleged negligence came within the purview of the discretionary function exception because the district court found that the specific acts of alleged negligence flowed directly from the policy choices of on-site officials who had been explicitly entrusted with the responsibility of weighing competing policy considerations. Atmospheric Testing, 820 F.2d at 995. As we read Atmospheric Testing, then, it did not, as the government contends, provide blanket immunity to all aspects of nuclear testing; rather, it provided immu nity solely to those acts resulting from policy choices that were expressly" }, { "docid": "23333372", "title": "", "text": "contractors, which started in the Manhattan Project, continued under the AEC. The University of California, Sandia Corporation and Reynolds Electrical and Engineering Co., Inc., were among those contractors. “Escalating international tensions, marked by the Berlin blockade in 1948, the confrontation with the Soviet Union over Czechoslovakia, Greece and Iran, the detonation by the Soviet Union of an atomic device in 1949, and the Korean War led the government to assign the highest priority to the development and production of nuclear weapons. Weapons tests were an essential part of that effort. “These tests were regarded as critical to national security. Presidents Eisenhower and Kennedy and the Chairman of the AEC made public statements stressing the vital importance of tests to the development of modern weapons needed to assure national security in the face of the threat posed by the Soviet Union. Indeed, atmospheric nuclear weapons testing was a major issue in United States-Soviet relations during this period. Beginning in 1955, testing was a topic in the disarmament negotiations. In 1958, a moratorium on tests was agreed on and was observed until the Soviet Union resumed atmospheric testing in 1961. The United States followed suit to counteract qualitative improvements in Soviet weapons. In 1963, atmospheric nuclear tests were finally banned by the Partial Nuclear Test Ban Treaty. “From 1947 through 1963, the AEC in conjunction with the Department of Defense conducted 21 test series, some of which are the subject of these actions. These tests had a number of objectives, including developing weapons, planning their tactical and strategic use, determining how targets could be given protection, assessing the vulnerability of troops to the effects of detonations, and improving radiological safety. A particular objective of the tests was to determine the effects of nuclear explosions on the equipment, clothing, weapons and fighting capability of military personnel. The tests were coordinated with studies conducted at laboratories operated by contractors. “Every phase of the preparation and implementation of each nuclear weapons test series was closely controlled and supervised by government officials. Initially, proposals for tests had to be approved at various levels by the responsible" }, { "docid": "23333424", "title": "", "text": "unwarranted psychological effects, produce their own adverse consequences which must be taken into account. The experience under the government’s 1976 Swine Flu Program illustrates the hazards of a hasty reaction to a health program, the dimensions and seriousness of which are not yet known at the time. Although the probability of an epidemic was never established, the public was strongly urged to submit to immunization with little advice respecting its attendant hazards. R. Neustadt, Swine Flu Affair: Decision-Making on a Slippery Disease 86-97 (1978); Gray, \"Complexities of Informed Consent,\" 437 Annals Am. Academy Pol. & Soc. Sci, 37, 44 (May, 1978); Centers for Disease Control, Public Attitudes Toward the Swine Flu Immunization Program and Medical Coverage of Events 2-7 (1981). The government's experience with the swine flu program highlights the policy and cost/benefit tradeoffs involved in large-scale public responses to perceived health problems. . Not the least of the problems the government would face is that once having undertaken to issue a \"warning”, it may come under an obligation to exercise due care toward members of the public relying on it. See Indian Towing Co. v. United States, 350 U.S. 61, 69, 76 S.Ct. 122, 126, 100 L.Ed. 48 (1955) (not decided under the discretionary function exception). . Studying the psychological reactions of troops to nuclear weapons during field tests was a specific goal of many of the tests. See, e.g., Characteristics of Troops with Varying Levels of Information about Atomic Effects, Government Exhibit D-67; Memorandum for the AEC Chairman, July 16, 1951, Government Exhibit K-14. To carry out such studies and achieve test objectives, the government needed complete control over information supplied to the troops. Troops were to be indoctrinated on how to conduct themselves on the nuclear battlefield. As one officer explained, the goal was to teach soldiers to respect radioactivity, not to fear it. Capt. Frank Winant, Command Problems of Atomic Defensive Warfare, Sept. 1947, Government Exhibit J-13. . See, Begay v. United States, 768 F.2d 1059 (9th Cir.1985); First Natl Bank in Albuquerque v. United States, 552 F.2d 370, 374-77 (10th Cir.), cert. denied, 434 U.S." }, { "docid": "1549463", "title": "", "text": "in the government’s nuclear testing program sued the United States on two categories of claims. The first rested on alleged negligence in failing to take adequate safety precautions at the test site; the second was based on the government’s alleged duty to warn participants of the dangers to which they had been or would be exposed. The district court granted summary judgment to the United States on the basis that the claims were barred by the discretionary function exception. We affirmed on the basis of Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). In Dalehite, the Supreme Court held that specific acts of negligence came within the purview of the discretionary function exception because they were “performed under the direction of a plan developed at a high level under a direct delegation of plan-making authority from the apex of the Executive Department.” Id. at 40, 73 S.Ct. at 970. In Atmospheric Testing, we found Dalehite “squarely on point.” 820 F.2d at 993. Crucial to our analysis was the fact that the alleged acts of negligence were the result of a balancing of competing policy considerations by on-site officials who had been entrusted with the power to engage in such discretionary decisionmaking. We said, “The responsibility for carrying out the Safety Plan was assigned to the officials in charge of the tests who had discretion to adopt and modify the Plan as necessary to achieve the objectives of the test.” Id. at 995 (emphasis added). In rejecting the claims arising from decisions by military commanders, we particularly relied on the following facts: The need to balance risks against test objectives was particularly acute in tests involving troop maneuvers.... It was recognized that the desire of the military to expose troops to realistic combat conditions could interfere with the AEC’s weapons testing objectives. The arrangements ultimately incorporated in the Operations Plans represented an accommodation of these divergent requirements by the AEC and military officials. In later tests, involving large scale military maneuvers under battlefield conditions, these considerations led to delegation of responsibility for radiological and physical" }, { "docid": "23333425", "title": "", "text": "of the public relying on it. See Indian Towing Co. v. United States, 350 U.S. 61, 69, 76 S.Ct. 122, 126, 100 L.Ed. 48 (1955) (not decided under the discretionary function exception). . Studying the psychological reactions of troops to nuclear weapons during field tests was a specific goal of many of the tests. See, e.g., Characteristics of Troops with Varying Levels of Information about Atomic Effects, Government Exhibit D-67; Memorandum for the AEC Chairman, July 16, 1951, Government Exhibit K-14. To carry out such studies and achieve test objectives, the government needed complete control over information supplied to the troops. Troops were to be indoctrinated on how to conduct themselves on the nuclear battlefield. As one officer explained, the goal was to teach soldiers to respect radioactivity, not to fear it. Capt. Frank Winant, Command Problems of Atomic Defensive Warfare, Sept. 1947, Government Exhibit J-13. . See, Begay v. United States, 768 F.2d 1059 (9th Cir.1985); First Natl Bank in Albuquerque v. United States, 552 F.2d 370, 374-77 (10th Cir.), cert. denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977) (decision by Department of Agriculture whether label on fungicide complied with statutory requirement that it contain a warning \"necessary and if complied with adequate to prevent injury\" fell within discretionary function exception). . See Allen v. United States, 588 F.Supp. 247, 337-40 (D.Utah 1984). [The district court's decision in Allen was overturned by the Tenth Circuit in Allen v. United States, 816 F.2d 1417 (10th Cir.1987). In that opinion, the Tenth Circuit specifically rejected the District oof Utah District Court’s “deliberate choice” or \"conscious decision\" analysis which was heavily relied upon by the appellants in this case. The Tenth Circuit held: It is also irrelevant whether the alleged failure to warn was a matter of \"deliberate choice,\" or a mere oversight. See Allen, 588 F.Supp. at 337-38. We agree with the treatment of this distinction in Myslakowski v. United States, 806 F.2d 94 (6th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1608, 94 L.Ed.2d 793 (1987): \"The critical error in the trial court’s analysis is in" }, { "docid": "23333374", "title": "", "text": "divisions of the AEC and the Department of Defense. Before any test took place, a detailed Operation Plan had to be reviewed and approved by the AEC, by the National Security Council, and finally by the President. “Tests at the Pacific Proving Ground were under the control of a joint task force commander, appointed by the AEC and the Joint Chiefs of Staff. At the Nevada Test Site, tests were under the control of a Test Manager designated by the AEC. Tests were conducted in conformity with the approved Operation Plan, which incorporated radiation exposure limits established by the AEC applicable to both military and civilian personnel. Various military and civilian committees and medical and scientific experts took part in making the decisions which were incorporated into the Operation Plan. Designated units in each test orga nization were assigned responsibility for radiological safety. “Nuclear weapons testing was known to be an inherently dangerous activity. Aside from the recognized radiation hazards, the risks included the dangers associated with any explosive devices, the effects of unpredictable meteorological conditions, and the risks of injury inherent in any large-scale military operation. “The need to balance risks against test objectives was particularly acute in tests involving troop maneuvers. These tests were intended to expose troops to battlefield conditions to test psychological reactions and protective measures. The location and movement of those troops was a subject of controversy between the AEC and military commanders. It was recognized that the desire of the military to expose troops to realistic combat conditions could interfere with the AEC’s weapons testing objectives. The arrangements ultimately incorporated in the Operation Plans represented an accommodation of these divergent requirements by the AEC and military officials. In later tests, involving large scale military maneuvers under battlefield conditions, these considerations led to delegation of responsibility for radiological and physical safety of troops to the military commanders. II. DISCUSSION A. Motions to Substitute — 42 U.S.C. § 2212 1. The Provisions and Effect of § 2212 “In October 1984, Congress adopted § 1631 of the Department of Energy National Security and Military Applications of Nuclear" }, { "docid": "22430130", "title": "", "text": "activity. Because federal liability under the FTCA is conditioned on analogous private liability, 28 U.S.C. § 2674, the Court ruled that there could be no federal liability for failure to fight a fire. This theory of governmental nonliability under the FTCA, an echo of the traditional distinction between governmental and proprietary functions applicable to municipal corporations, has since been rejected by the Court. See Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955); Rayonier Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957). . If we focus only on the Court’s holding in Dalehite that the failure to adopt stricter regulations or to regulate more closely loading and storage procedures is a protected discretionary function, Dalehite has in fact been followed by consistent and uneventful judicial development; the government is not liable for a discretionary decision, made consciously or by inadvertence, not to adopt stricter regulations. See, e, g., First National Bank v. United States, 552 F.2d 370 (10th Cir.) (failure to require more complete fungicide labels), cert, denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977); Miller v. United States, 522 F.2d 386 (6th Cir. 1975) (air safety regulations); Blaber v. United States, 332 F.2d 629 (2d Cir. 1964) (safety regulation of independent contractors of AEC); Weinstein v. United States, 244 F.2d 68 (3d Cir. 1957) (IRS regulation of operations of alcohol denaturing plants); Dupree v. United States, 247 F.2d 819 (3d Cir. 1957) (promulgation of even unconstitutional or unreasonable regulations); Smith v. United States, 330 F.Supp. 867, 868-70 (E.D.Mich.1971) (policies and rules regulating training of the National Guard); Marr v. United States, 307 F.Supp. 930 (E.D.Okl.1968) (CAB air safety regulations); Rowe v. United States, 272 F.Supp. 462 (W.D.Pa.1964) (air safety regulations); Kullberg v. United. States, 271 F.Supp. 788 (W.D.Pa.1964) (air safety regulations). But cf. White v. Trans World Airlines, Inc., 320 F.Supp. 655, 657 (S.D.N.Y.1970) (dicta suggesting U.S. might be held liable if the FAA issued regulations “so inadequate to assure safe flight that supplementary services should have been provided.”) Weinstein v. United States," }, { "docid": "13338029", "title": "", "text": "the above-described broad discretion vested in immigration inspectors; he merely makes bald allegations that the inspec tors do not have broad discretion. This is not enough to defeat the Government’s motion for summary judgment. See Fed.R. Civ.P. 56(e). This is not a case where an official must mechanically follow set, defined guidelines and has no discretion to disregard his own agency’s regulations. See, e. g., Griffin v. United States, 500 F.2d 1059, 1064-69 (3d Cir. 1974) (no discretion conferred to disregard mandatory regulatory command); Hoffman v. United States, 398 F.Supp. 530, 533-39 (E.D.Mich.1975) (FAA regulation presented clear standards to be applied to specific fact situations). Instead, this is a case where an official has broad discretion and few constraints in his decision-making. See, e. g., First National Bank in Albuquerque v. United States, 552 F.2d 370, 375 — 76 (10th Cir. 1977), cert. denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1978) (discretionary function exception applies where federal statute phrased in terms of general policy standards to be applied by the agency); Hendry v. United States, 418 F.2d 774, 783 (2d Cir. 1969) (discretionary function exception applies where governing statute or regulation comtemplates that an official will make new rules or ad hoc decisions); Coastwise Packet Co. v. United States, 398 F.2d 77, 79-80 (1st Cir.), cert. denied, 393 U.S. 937, 89 S.Ct. 300, 21 L.Ed.2d 274 (1968) (certification of schooners involving no single known objective standard is “precisely the sort of discretionary function” exempted under § 2680(a)); Gray v. United States, 445 F.Supp. 337, 340-41 (S.D.Tex.1978) (statutory language involving “no particular scientific tests or measuring sticks” is a “direct indicator of the discretionary nature” of agency determinations); In re Air Crash Disaster Near Silver Plume, Colorado, 445 F.Supp. 384, 402 (D.Kan.1977) (discretionary function exception applies where decisions must be made on a case-by-case basis, guided only by statements of agency philosophy). This Court therefore finds that the nature and quality of the discretion involved in Inspector Stump’s actions bring his conduct within the discretionary function exception to the FTCA. Furthermore, important foreign policy and political considerations permeate" } ]

[ { "docid": "12727700", "title": "", "text": "enter in the case. Section 19(a) of the Act, 15 U.S.C.A. § 717r(a), 18 C.F.R. § 1.30(d). Proceedings remain, which, if the court found it needs- sary so to act, we could stay on the basis of our jurisdiction to consider the petition for review before us. Accordingly, respondent’s motion to dismiss petitioner’s motion for a stay is denied. We come, then, to a consideration of whether petitioner has shown sufficient grounds warranting the exercise of the court’s powers to grant the extraordinary relief requested. Essentially, four factors influence our decision: (1) Has the petitioner made a strong showing that it is likely to prevail on the merits of its appeal? Without such a substantial indication of probable success, there would be no justification for the court’s intrusion into the ordinary processes of administration and judicial review. (2) Has the petitioner shown that without such relief, it will be irreparably injured? The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm. But injury held insufficient to justify a stay in one case may well be sufficient to justify it in another, where the applicant has demonstrated a higher probability of success on the merits. (3) Would the issuance of a stay substantially harm other parties interested in the proceedings? On this side of the coin, we must determine whether, despite showings of probable success and irreparable injury on the part of petitioner, the issuance of a stay would have a serious adverse effect on other interested persons. Relief saving one claimant from irreparable injury, at the expense of similar harm caused another, might not qualify as the equitable judgment that a stay represents. (4) Where lies the public interest? In litigation involving the administration of regulatory statutes designed to promote the public interest, this factor necessarily becomes crucial. The interests" } ]

[ { "docid": "23137098", "title": "", "text": "injunction requires that a district court, acting on an incomplete record, order a party to act, or refrain from acting, in a certain way. “[T]he danger of a mistake” in this setting “is substantial.” American Hosp. Supply Corp. v. Hospital Prods., Ltd, 780 F.2d 589, 593 (7th Cir.1986). Preliminary injunctions create other problems as well. The decision on a preliminary injunction motion is an appealable order. See 28 U.S.C. 1292(a)(1). Therefore, preliminary injunctions often lead to repetitive litigation as the claim is litigated and appealed for purposes of the preliminary injunction, and then again for purposes of the final decision on the merits. This repetitive litigation carries significant costs for all parties. Because of these concerns, courts have insisted that the harm necessary to justify issuance of a preliminary injunction be irreparable. The Supreme Court has stated: “The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 953, 39 L.Ed.2d 166 (1974) (quoting Virginia Petroleum Jobbers Assoc. v. Federal Power Comm’n, 259 F.2d 921, 925 (D.C.Cir.1958)). Where the harm suffered by the moving party may be compensated by an award of money damages at judgment, courts generally have refused to find that harm irreparable. See, e.g., Morton v. Beyer, 822 F.2d 364, 371-72 (3d Cir.1987); Foxboro Co. v. Arabian Am. Oil Co., 805 F.2d 34, 36 (1st Cir.1986). Monetary relief typically may be granted as easily at judgment as at a preliminary injunction hearing, and a party does not normally suffer irreparable harm simply because it has to win a final judgment on the merits to obtain monetary relief. B. Even if a loss can be compensated by money damages at judgment, however, extraordinary circumstances may give rise to the irreparable harm required for a preliminary injunction. For example, the" }, { "docid": "7993073", "title": "", "text": "Proof of monetary loss, alone, may not be sufficient to carry the burden of persuasion. In Morgan v. Fletcher, 518 F.2d 236 (5th Cir. 1975), the Court held that a District Court’s partial predication of irreparable injury on the loss of 45% of the family income was erroneous. Plaintiff in that case sought injunctive relief to prevent her employer, a government agency, from firing her until she had been given a full hearing by that agency. The District Court granted a preliminary injunction and the Fifth Circuit reversed, saying that Plaintiff made no showing of irreparable injury sufficient to support the injunction. In its discussion on the injury issue, however, the Court relied on language from a D.C. Circuit case that was quoted with the approval of the Supreme Court in Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974). At 518 F.2d 236, 240, the court stated: [t]he key word in this consideration is irreparable. Mere injuries, however substantial in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm. Virginia Petroleum Jobbers Association v. Federal Power Commission, 104 U.S.App.D.C. 106, 110, 259 F.2d 921, 925 (1958). The Fifth Circuit concluded by stating that Plaintiff would be entitled to full back pay should her discharge be held wrongful. The Fifth Circuit employed the same rationale in Parks v. Dunlop, 517 F.2d 785 (5th Cir. 1975). In that case, Plaintiff sought to enjoin the Department of Labor from failing to hire him because he was a Caucasian. Citing Sampson v. Murray, supra, the Circuit Court reversed the trial court’s refusal to dissolve a temporary injunction because there was no showing of irreparable injury. The court noted that, were Plaintiff to prevail on the merits, the trial judge would have the power to award him the job he sought, as well as monetary damages based on the pay differential between" }, { "docid": "1437893", "title": "", "text": "Injunction is Not Issued To obtain injunctive relief, a party must make a clear showing of “immediate irreparable injury” or a “presently existing actual threat.” Acierno v. New Castle County, 40 F.3d 645, 655 (3d Cir.1994); see Coplan v. Fellheimer Eichen Braverman & Kaskey, 68 F.3d 828, 839 (3d Cir.1995); Jews for Jesus v. Brodsky, 993 F.Supp. at 311. The mere risk of irreparable harm or the possibility of a remote future injury is not enough. See Ademo, 40 F.3d at 655. The word irreparable “connotes ‘that which cannot be repaired, retrieved, put down again [or] atoned for.’ ” Id. at 653. As such, Marsellis-Warner must demonstrate that, absent the issuance of a preliminary injunction, it will suffer harm which cannot be redressed sufficiently following a trial of the matter. See id. at 652; One World Botanicals Ltd. v. Gulf Coast Nutritionals, Inc., 987 F.Supp. 317, 336 (D.N.J.1997) (quoting Instant Air, 882 F.2d at 801). In other words, the issuance of a preliminary injunction must be the only way to protect Marsellis-Warner from injury or harm. See id.; see also Opticians, 920 F.2d at 195 (quoting Morton v. Beyer, 822 F.2d 364, 372 (3d Cir.1987)). In this regard, where money damages are “capable of ascertainment and award at final judgment ... [and] will fully compensate [the plaintiff] for its losses[,]” a preliminary injunction should not issue. Instant Air, 882 F.2d at 801; see Frank’s GMC Truck Center v. General Motors Corp., 847 F.2d 100, 102 (3d Cir.1988) (“The availability of adequate mone tary damages belies a claim of irreparable injury.”)- Economic loss does not constitute “irreparable harm.” See Acierno, 40 F.3d at 652 (quoting Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974)). As evidence of irreparable harm, Mar-sellis-Warner submitted: [The Defendants] have already altered and destroyed business records, and have manufactured [sic] false business records in an attempt to undermine any investigation and/or discovery of their misconduct. There is every reason to believe that if a Writ of Attachment and injunctive relief are not issued, ... [the Defendants] will transfer and/or deplete their assets" }, { "docid": "22768855", "title": "", "text": "be irreparable. The basis of injunctive relief in the federal courts is irreparable harm and inadequacy of legal remedies. Sampson v. Murray, 415 U.S. 61, 88, 94 S.Ct. 937, 951, 39 L.Ed.2d 166 (1974). The district court specifically stated that the reason plaintiff had demonstrated the requisite possibility of irreparable injury was: because the managing partner of the Raiders has indicated both that his club desires to play its home games in Los Angeles, and that the only significant obstacle to reaching an agreement with the Coliseum is the possible invocation of section 4.3. 484 F.Supp. at 1276. The court identified “the alleged injury to the Coliseum in the absence of an injunction” as “lost revenues due to its failure to acquire an NFL team.” Id. at 1275. It is well established, however, that such monetary injury is not normally considered irreparable. The Supreme Court has stated: “[T]he temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury . . . ‘The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended .... are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.’ ” Sampson v. Murray, supra, 415 U.S. at 90, 94 S.Ct. at 952, quoting Virginia Petroleum Jobbers Association v. Federal Power Commission, 104 U.S.App.D.C. 106, 110, 259 F.2d 921, 925 (D.C.Cir.1958). The Coliseum’s lost revenues would be compensable by a damage award should the Commission ultimately prevail on the merits. The district court, therefore, proceeded upon the further erroneous legal premise that the type of injury it identified was irreparable and abused its discretion in improperly granting a preliminary injunction on the basis of such threatened injury. Other than the threat of lost revenues, the plaintiff did not demonstrate any threat of harm that would have supported a finding of irreparable injury. The amended complaint alleged that without injunctive relief, the Commission would suffer “a diminution of revenues, a diminution" }, { "docid": "18759884", "title": "", "text": "harm to its liquor retailers, we cannot conclude that the possibility of injury to the Town is irreparable. Even if the loss of tax revenues were not speculative, we could not sustain the issuance of a preliminary injunction. In Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), the Supreme Court discussed whether monetary loss can be sufficient to support a finding of irreparable harm, stating: [T]he temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury. * * * “The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended * * * are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Id., 415 U.S. at 90, 94 S.Ct. at 952-53 (quoting Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921, 925 (D.C.Cir.1958)). This court addressed the issue of irreparable harm in Los Angeles Memorial Coliseum, 634 F.2d 1197, in which we considered whether to uphold a preliminary injunction that restrained the National Football League (NFL) from enforcing its rule requiring a three fourths vote of team owners before an NFL team could transfer location of home games to the Los Angeles Memorial Coliseum. In that case, we determined that the Coliseum had failed to demonstrate the possibility of irreparable injury by showing merely the extent to which revenues would be lost due to its failure to acquire an NFL team. Id. at 1202. Our conclusion was based on the well established principal that “such monetary injury is not normally considered irreparable.” Id.; accord Lydo Enterprises, Inc., 745 F.2d at 1213 (economic injuries from closure and relocation of business would be compensable); Goldie’s Bookstore, 739 F.2d at 471 (same). Adequate legal remedies were available to the Coliseum since any loss of revenues would be compensable by a damage award should the Coliseum ultimately prevail on the merits. Consequently, we found that the district court abused" }, { "docid": "6547489", "title": "", "text": "relies, are general in nature. Becker Aff., Exs. O, R, T. Although these letters do indicate the potential savings for NAPO-COR if the Second Trial Order is placed with Centrosphere instead of Apollo, these letters do not reveal or discuss any specific of the information regarded by Apollo as trade secrets. Mere persuasion alone, even though it is knowingly directed at interference with a prospective contract, will not be enough to constitute wrongful means. Guard-Life, 50 N.Y.2d at 191, 428 N.Y.S.2d 628, 406 N.E.2d 445. Apollo has not demonstrated that Centrosphere’s letters to NAPOCOR are anything more than mere persuasion. 3. Irreparable Injury In order to demonstrate irreparable injury, the moving party “must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial. The preliminary injunction must be the only way of protecting the plaintiff from harm.” Instant Air, 882 F.2d at 801 (emphasis added) (citing Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1982); Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 356 & n. 9 (3d Cir.1980)). The Supreme Court, in speaking to the irreparable injury requirement, has stated: [I]t seems clear that the temporary loss of income, ultimately to be recovered, does not constitute irreparable inju-ry_ “The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough. The possibility that adequate corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Sampson v. Murray, 415 U.S. 61, 90, 94, 94 S.Ct. 937, 952-53, 954, 39 L.Ed.2d 166 (1974) (emphasis original) (quoting Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.D.C.1958); quoted in Instant Air, 882 F.2d at 801). The Circuit has towed a similarly strict line on what constitutes irreparable injury. In Frank’s GMC, the court stated that “[t]he availability of adequate monetary damages belies a claim of irreparable injury.” 847 F.2d at 102; accord Morton, 822 F.2d" }, { "docid": "7550779", "title": "", "text": "claims raised in the Arbitration Proceedings. Gruntal has therefore shown sufficient likelihood of success on the merits of the Complaint to support a preliminary injunction against arbitration in this matter. 2. Irreparable Injury In order to demonstrate irreparable injury, the moving party “must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial. The preliminary injunction must be the only way of protecting the plaintiff from harm.” Instant Air, 882 F.2d at 801 (emphasis added) (citing Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1982); Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 3569 & n. 9 (3d Cir.1980)). The Supreme Court, in speaking to the irreparable injury requirement, has stated: [I]t seems clear that the temporary loss of income, ultimately to be recovered, does not constitute irreparable injury.... “The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough. The possibility that adequate corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Sampson v. Murray, 415 U.S. 61, 90, 94, 94 S.Ct. 937, 953, 954, 39 L.Ed.2d 166 (1974) (emphasis original) (quoting Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.D.C.1958); quoted in Instant Air, 882 F.2d at 801). The Circuit has toed a similarly strict line on what constitutes irreparable injury. In Frank’s GMC, the court stated that “[t]he availability of adequate monetary damages belies a claim of irreparable injury.” 847 F.2d at 102; accord Morton, 822 F.2d at 372. In Instant Air, the court stated: “[W]e have never upheld an injunction where the claimed injury constituted a loss of money or loss capable of recoupment in a proper action at law.” 882 F.2d at 801 (quoting Arthur Treacher’s, 689 F.2d at 1145); see also Morton, 822 F.2d at 372 (no injunction to prevent termination of plaintiffs employment despite fact that significant cash flow problems and financial distress" }, { "docid": "5739641", "title": "", "text": "with basic needs such as housing, food and health care. They are, they argue, unable to perform any substantial gainful employment and are without another sufficient source of income. Defendant retorts that it is well-established that “the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury.” Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 952, 39 L.Ed.2d 166 (1974). She quotes from Obum v. Shapp, 521 F.2d 142, 151 (3rd Cir.1975) for the proposition that: Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm. Plaintiffs respond that they are on a very different footing than the plaintiff in Sampson, an unlawful discharge case. While the Sampson plaintiff had been earning a livelihood up to the time of discharge and continued to be employable, plaintiffs argue that they “are not only without any income due to the cutoff of benefits, but because of their continued disability, they are without any means of procuring the necessities of life.” Plaintiffs’ Reply Brief at 7. Professor Leubsdorf’s writings are illuminating on the question of whether there can ever be irreparable injury where the party seeking injunctive relief could, at some point, be compensated with money: The concept of irreparable injury takes on different meanings in different contexts. At trial, it refers to injury for which there is no adequate remedy at law. At the interlocutory hearing, it denotes injury for which there is no adequate remedy — legal or equitable — at final judgment. Even in the first context, the conclusion that an injury is irreparable involves considerations of policy apart from the feasibility of computing damages. Today, factors including the need for a jury trial, the relative burdens of damages and injunctions, and the substantive law’s concern with changing conduct or compensating victims help to shape the remedial choice. If necessary, any injury" }, { "docid": "22890639", "title": "", "text": "479 U.S. 1059, 107 S.Ct. 939, 93 L.Ed.2d 989 (1987). III. Analysis On appeal, the County challenges the district court’s conclusion that Acierno demonstrated the threat of immediate irreparable injury necessary to justify the mandatory preliminary injunctive relief granted here and also argues that the district court abused its discretion in crafting the terms of the injunction and in providing overly broad relief to Acierno. In order to obtain a preliminary injunction, “ ‘the moving party must generally show: (1) a reasonable probability of eventual success in the litigation, and (2) that it will be irreparably injured pendente lite if relief is not granted to prevent a change in the status quo.’ ” Delaware River Port Auth. v. Transamerican Trailer Transp., Inc., 501 F.2d 917, 919-20 (3d Cir.1974) (quoting A.L.K Corp. v. Columbia Pictures Indus., Inc., 440 F.2d 761, 763 (3d Cir.1971)). Moreover, while the burden rests upon the moving party to make these two requisite showings, the district court “should take into account, when they are relevant, (3) the possibility of harm to other interested persons from the grant or denial of the injunction, and (4) the public interest.” Id. at 920 (footnote omitted). In general, to show irreparable harm a plaintiff must “demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial.” Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir.1989). Economic loss does not constitute irreparable harm: [I]t seems clear that the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury: “The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 952-53, 39 L.Ed.2d 166 (1974) (footnotes omitted) (quoting Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925" }, { "docid": "22420116", "title": "", "text": "later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.’ (emphasis in original). Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 953, 39 L.Ed.2d 166 (1964) (quoting Virginia Petroleum Jobbers Assn. v. FPC, 259 F.2d 921, 925 (D.C.Cir.1958)). As we stated in Arthur Treacher’s: “[W]e have never upheld an injunction where the claimed injury constituted a loss of money or loss capable of recoupment in a proper action at law.” Id. at 1145. In Frank’s GMC, 847 F.2d 100 (3d Cir.1988) we found that “[t]he availability of adequate monetary damages belies a claim of irreparable injury.” Id. at 102. The bottom line in this case, as in Frank’s GMC, centers on the loss of money which Instant will suffer as a result of the contract termination. Here the monetary damages which Instant alleges it is suffering are capable of ascertainment and award at final judgment if Instant prevails. These money damages will fully compensate Instant for its losses. See Arthur Treacher’s, 689 F.2d at 1146. As we stated in Morton v. Beyer, 822 F.2d 364 (3d Cir.1987), “although we are not insensitive to the financial distress suffered by [the plaintiff], we do not believe that loss of income alone constitutes irreparable harm.” In determining whether a remedy in damages for a breach of contract would be adequate the following circumstances are significant: \"(a) the difficulty of proving damages with reasonable certainty, (b) the difficulty of procuring a suitable substitute performance by means of money awarded as damages, and (c) the likelihood that an award of damages could not be collected.\" Restatement (Second) of Contracts § 360 (1981). Money damages in this case should be provable with reasonable certainty given the lengthy history of the two companies' association and the more than two years already performed under the contract. Any damage to Instant is susceptible of precise measurement in light of the volume of freight Instant has handled for C.F. over the period of the contract. If C.F. in fact provides eighty percent of Instant's business, as Instant maintains, the calculation of the" }, { "docid": "22420115", "title": "", "text": "9 (3d Cir.1980). Instant argues that without the preliminary injunction entered by the district court “Instant’s business will be completely destroyed, its employees and jobs will be lost and its goodwill and business reputation will be ruined.... Instant will be forced to lay off most, if not all, of its 70 employees and will lose everything it has built over the past two decades.” The crucial issue in determining whether the district court abused its discretion in finding irreparable injury in this case is the question of whether money damages provide an adequate remedy at law to Instant. The Supreme Court, in speaking to the standards for granting preliminary injunctions, has noted: [I]t seems clear that the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury_ ‘The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.’ (emphasis in original). Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 953, 39 L.Ed.2d 166 (1964) (quoting Virginia Petroleum Jobbers Assn. v. FPC, 259 F.2d 921, 925 (D.C.Cir.1958)). As we stated in Arthur Treacher’s: “[W]e have never upheld an injunction where the claimed injury constituted a loss of money or loss capable of recoupment in a proper action at law.” Id. at 1145. In Frank’s GMC, 847 F.2d 100 (3d Cir.1988) we found that “[t]he availability of adequate monetary damages belies a claim of irreparable injury.” Id. at 102. The bottom line in this case, as in Frank’s GMC, centers on the loss of money which Instant will suffer as a result of the contract termination. Here the monetary damages which Instant alleges it is suffering are capable of ascertainment and award at final judgment if Instant prevails. These money damages will fully compensate Instant for its losses. See Arthur Treacher’s, 689 F.2d at 1146. As we" }, { "docid": "1437894", "title": "", "text": "harm. See id.; see also Opticians, 920 F.2d at 195 (quoting Morton v. Beyer, 822 F.2d 364, 372 (3d Cir.1987)). In this regard, where money damages are “capable of ascertainment and award at final judgment ... [and] will fully compensate [the plaintiff] for its losses[,]” a preliminary injunction should not issue. Instant Air, 882 F.2d at 801; see Frank’s GMC Truck Center v. General Motors Corp., 847 F.2d 100, 102 (3d Cir.1988) (“The availability of adequate mone tary damages belies a claim of irreparable injury.”)- Economic loss does not constitute “irreparable harm.” See Acierno, 40 F.3d at 652 (quoting Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974)). As evidence of irreparable harm, Mar-sellis-Warner submitted: [The Defendants] have already altered and destroyed business records, and have manufactured [sic] false business records in an attempt to undermine any investigation and/or discovery of their misconduct. There is every reason to believe that if a Writ of Attachment and injunctive relief are not issued, ... [the Defendants] will transfer and/or deplete their assets so as to put them out of reach of execution, and will also attempt to destroy virtually every document in their possession which could conceivably be used against them. Preliminary Injunction Moving Brief at 3-4 (emphasis in original). It appears from the affidavits submitted by Marsellis-Warner the Defendants have already engaged in repeated acts of secreting, removing and/or destroying business records and documentation which may contain evidence implicating them in illegal or unauthorized activities. Amsterdam stated: Earlier this year] I was informed by a representative of Assuncao Brothers, a contractor frequently retained by [Mar-sellis-Warner], that Assuncao Brothers had poured two concrete slabs at the Shore Point Bottling plant (one of defendants’ side jobs) at [Jack] Fernandez’s request. When I inspected the files at the South Jersey office, I discovered a receipt prepared by Rabens or [Jack] Fernandez which misrepresented that the two slabs were poured for Dow Jones, one of [Marsellis-Warner’s] legitimate customers. I set the document aside to be copied. However, when I returned to the office subsequently to pick up a copy of" }, { "docid": "21101999", "title": "", "text": "fair grounds for litigation and a balance of hardships tilting decidedly towards the plaintiff. Loveridge v. Pendleton Woolen Mills, Inc., 788 F.2d 914, 916 (2d Cir.1986). Because we hold that Jayaraj failed to establish that he would suffer irreparable harm in the absence of an injunction, there is no need to reach the second portion of the preliminary injunction analysis. Perhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered. Citibank N.A. v. Citytrust, 756 F.2d 273, 275 (2d Cir.1985) (internal quotations omitted). Irreparable harm “means injury for which a monetary award cannot be adequate compensation.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). [I]t seems clear that the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury.... The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm. Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 953, 39 L.Ed.2d 166 (1974) (emphasis in original) (internal quotation and footnote omitted). Therefore, where monetary damages may provide adequate compensation, a preliminary injunction should not issue. See Loveridge, 788 F.2d at 918. Furthermore, the harm must be imminent or certain, not merely speculative. Tom Doherty Assoc., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 37 (1995). The district court’s finding of irreparable harm is based upon six subordinate findings. First, the court found that Jaya-raj’s “interim status may be compromised by his termination leaving him vulnerable to an award of back pay less than what he might have earned.” (JA 270) This finding apparently refers to the February 6, 1995 colloquy at which time the district court voiced its concern" }, { "docid": "6547490", "title": "", "text": "614 F.2d 351, 356 & n. 9 (3d Cir.1980)). The Supreme Court, in speaking to the irreparable injury requirement, has stated: [I]t seems clear that the temporary loss of income, ultimately to be recovered, does not constitute irreparable inju-ry_ “The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough. The possibility that adequate corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Sampson v. Murray, 415 U.S. 61, 90, 94, 94 S.Ct. 937, 952-53, 954, 39 L.Ed.2d 166 (1974) (emphasis original) (quoting Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.D.C.1958); quoted in Instant Air, 882 F.2d at 801). The Circuit has towed a similarly strict line on what constitutes irreparable injury. In Frank’s GMC, the court stated that “[t]he availability of adequate monetary damages belies a claim of irreparable injury.” 847 F.2d at 102; accord Morton, 822 F.2d at 372. In Instant Air, the court stated: “[W]e have never upheld an injunction where the claimed injury constituted a loss of money or loss capable of recoupment in a proper action at law.” 882 F.2d at 801 (quoting Arthur Treacher’s, 689 F.2d at 1145); see also Morton, 822 F.2d at 372 (no injunction to prevent termination of plaintiffs employment despite fact that significant cash flow problems and financial distress could follow). Frank’s GMC involved a dispute arising from the obligations of a franchise relationship. Frank’s GMC had been a franchisee of General Motors Corp. (“GM”) since 1937, and since 1973 had sold a full line of GM trucks. 847 F.2d at 100. In 1986, GM advised Frank’s GMC that it had entered into a joint venture with Volvo. Id. Pursuant to this venture, GM was no longer going to manufacture or supply parts for its former line of heavy-duty trucks. Id. Frank’s GMC was ordered to cease taking orders for GM heavy-duty trucks and was advised that requests for parts would only be filled" }, { "docid": "7550780", "title": "", "text": "possibility that adequate corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Sampson v. Murray, 415 U.S. 61, 90, 94, 94 S.Ct. 937, 953, 954, 39 L.Ed.2d 166 (1974) (emphasis original) (quoting Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.D.C.1958); quoted in Instant Air, 882 F.2d at 801). The Circuit has toed a similarly strict line on what constitutes irreparable injury. In Frank’s GMC, the court stated that “[t]he availability of adequate monetary damages belies a claim of irreparable injury.” 847 F.2d at 102; accord Morton, 822 F.2d at 372. In Instant Air, the court stated: “[W]e have never upheld an injunction where the claimed injury constituted a loss of money or loss capable of recoupment in a proper action at law.” 882 F.2d at 801 (quoting Arthur Treacher’s, 689 F.2d at 1145); see also Morton, 822 F.2d at 372 (no injunction to prevent termination of plaintiffs employment despite fact that significant cash flow problems and financial distress could follow). Finally, the Circuit has indicated that “[ejstablishing a risk of irreparable harm is not enough. A plaintiff has the burden of proving a clear showing of immediate irreparable injury.” Hoxworth, 903 F.2d at 205 (quoting Ecri v. McGraw-Hill, Inc., 809 F.2d 223, 225 (3d Cir.1987)). Extensive analysis of the irreparable injury requirement in this case is obviated by the Third Circuit’s decision in PaineWebber, 921 F.2d 507. In PaineWebber, the plaintiff, a brokerage firm, moved for a preliminary injunction to prevent arbitration of a dispute involving the defendants, who were the plaintiffs clients. The issue of the arbitrability of the dispute was put before the arbitration panel. See Id. at 514. The district court granted the plaintiffs motion and preliminarily enjoined the arbitration proceedings. The Circuit affirmed. Addressing the issue of irreparable harm, the Circuit stated: [W]e think it obvious that the harm to a party would be per se irreparable if a court were to abdicate its responsibility to determine the scope of an arbitrator’s jurisdiction and, instead, were to compel the" }, { "docid": "18759883", "title": "", "text": "the Reservation are located in Parker and are conducted by non-Indians on lands owned by non-Indians, they are exempt from complying with the Tribe’s liquor licensing requirements. The Tribe’s licensing requirements primarily affect the wholesale distributors who make deliveries to retailers on the Reservation. However, four of the eight wholesale distributors who service Parker were complying with the ordinance when the injunction issued. At that time, apparently none of the retailers in Parker had experienced a diminution of their liquor supplies. Moreover, nowhere in the record is there any indication that the retail demand for liquor could not be met solely by the four complying distributors, or that other wholesalers could not enter the market and satisfy the demand. Any harm to the retailers in Parker, therefore is speculative. We have long since determined that speculative injury does not constitute irreparable injury. Goldie’s Bookstore, 739 F.2d at 472 (loss of goodwill and customers was speculative and thus, not irreparable harm). Because the injury being claimed by Parker is based upon nothing more than mere theoretical harm to its liquor retailers, we cannot conclude that the possibility of injury to the Town is irreparable. Even if the loss of tax revenues were not speculative, we could not sustain the issuance of a preliminary injunction. In Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), the Supreme Court discussed whether monetary loss can be sufficient to support a finding of irreparable harm, stating: [T]he temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury. * * * “The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended * * * are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Id., 415 U.S. at 90, 94 S.Ct. at 952-53 (quoting Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921, 925 (D.C.Cir.1958)). This court addressed the issue of irreparable" }, { "docid": "5739640", "title": "", "text": "consider how seriously an injunction restricts the defendant’s lawful freedom of action, the restriction cannot be measured by whether the injunction compels or forbids action. The distinction between requiring action and prohibiting action is mainly a verbal one unrelated to the likelihood of irreparable loss to the defendant. Leubsdorf, The Standard for Preliminary Injunctions, 91 Harvard Law Review 525, 546 (footnotes omitted). Moreover, the fact that an injunction may require the payment or expenditure of money does not necessarily foreclose the possibility of equitable relief. United States v. Price, supra at 212-213; U.S.W.A. v. Fort Pitt Steel Casting, 598 F.2d 1273, 1280 (3rd Cir.1979). Accordingly, the court may consider here the four factors traditionally considered by courts of equity in determining whether preliminary injunctive relief should be made available. See A.O. Smith Corp. v. F.T.C., 530 F.2d 515, 525 (3rd Cir.1976). Plaintiffs argue that they will suffer irreparable harm because they have been financially dependent on disability payments for long periods and the termination of these benefits has severely impaired their ability to provide themselves with basic needs such as housing, food and health care. They are, they argue, unable to perform any substantial gainful employment and are without another sufficient source of income. Defendant retorts that it is well-established that “the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury.” Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 952, 39 L.Ed.2d 166 (1974). She quotes from Obum v. Shapp, 521 F.2d 142, 151 (3rd Cir.1975) for the proposition that: Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm. Plaintiffs respond that they are on a very different footing than the plaintiff in Sampson, an unlawful discharge case. While the Sampson plaintiff had been earning a livelihood up to the time of discharge and continued to be employable, plaintiffs argue" }, { "docid": "6547491", "title": "", "text": "at 372. In Instant Air, the court stated: “[W]e have never upheld an injunction where the claimed injury constituted a loss of money or loss capable of recoupment in a proper action at law.” 882 F.2d at 801 (quoting Arthur Treacher’s, 689 F.2d at 1145); see also Morton, 822 F.2d at 372 (no injunction to prevent termination of plaintiffs employment despite fact that significant cash flow problems and financial distress could follow). Frank’s GMC involved a dispute arising from the obligations of a franchise relationship. Frank’s GMC had been a franchisee of General Motors Corp. (“GM”) since 1937, and since 1973 had sold a full line of GM trucks. 847 F.2d at 100. In 1986, GM advised Frank’s GMC that it had entered into a joint venture with Volvo. Id. Pursuant to this venture, GM was no longer going to manufacture or supply parts for its former line of heavy-duty trucks. Id. Frank’s GMC was ordered to cease taking orders for GM heavy-duty trucks and was advised that requests for parts would only be filled on a case-by-case basis. Id. Moreover, Frank’s GMC was not selected to market or sell the new line of trucks that was to be manufactured jointly by GM and Volvo. Id. Frank’s GMC sued GM for damages and for an injunction preventing GM from discontinuing its supply of heavy-duty trucks and parts. Id. Frank’s GMC asserted that it had lost and would continue to lose significant sales from not being able to sell a full line of GM trucks. Id. at 102. According to Frank’s GMC, this loss of sales would cause a corresponding decrease in service contracts, exacerbating the loss to its service business that had already been caused by GM’s failure to supply parts and warranty support. Id. All of these, Frank’s GMC claimed, would cause irreparable harm to its ongoing business. Id. The district court granted the injunction in favor of Frank’s GMC; the Circuit reversed. The Circuit noted that “what stands out in all of Frank’s GMC’s arguments is that, absent the ad interim relief provided by the district court, Frank’s" }, { "docid": "22890640", "title": "", "text": "interested persons from the grant or denial of the injunction, and (4) the public interest.” Id. at 920 (footnote omitted). In general, to show irreparable harm a plaintiff must “demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial.” Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir.1989). Economic loss does not constitute irreparable harm: [I]t seems clear that the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury: “The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 952-53, 39 L.Ed.2d 166 (1974) (footnotes omitted) (quoting Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.C.Cir.1958)). Thus, in order to warrant a preliminary injunction, the injury created by a failure to issue the requested injunction must “ ‘be of a peculiar nature, so that compensation in money cannot atone for it....’” A.O. Smith Corp. v. F.T.C., 530 F.2d 515, 525 (3d Cir.1976) (quoting Gause v. Perkins, 3 Jones Eq. 177, 69 Am.Dec. 728 (1857)). The word irreparable connotes “ ‘that which cannot be repaired, retrieved, put down-again, atoned for....’” Id. (quoting Gause, 3 Jones Eq. 177, 69 Am.Dec. 728). A party seeking a mandatory preliminary injunction that will alter the status quo bears a particularly heavy burden in demonstrating its necessity. Punnett v. Carter, 621 F.2d 578, 582 (3d Cir.1980). In concluding that Acierno demonstrated irreparable harm, the district court stated: It is evident from the record that plaintiff alleges economic losses in connection with his claims that defendant deprived him of his constitutional rights to due process and equal protection under the law. Plaintiff claims other harm as well, however, including damage to his reputation as a business person" }, { "docid": "5949087", "title": "", "text": "Pennsylvania ex rel. Creamer v. United States Dep’t of Agriculture, 469 F.2d 1387, 1388 (3d Cir.1972)). What constitutes irreparable injury in a case depends upon the particular facts of that case. Oburn v. Shapp, supra, 521 F.2d at 151. Here the district court found that loss of wages, employee benefits, and opportunities for promotion during the suspension period constituted irreparable injury. We disagree. In Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), a probationary government employee was notified that she was to be discharged for insubordination. She alleged that applicable Civil Service regulations relating to procedures for dismissal had not been followed, so she sought a temporary injunction against her dismissal pending her administrative appeal. The plaintiff argued that the loss of income pending the outcome of her appeal amounted to irreparable injury. The Supreme Court disagreed, stating that “it seems clear that the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury.” Id. at 90, 94 S.Ct. at 952. The Court then quoted from Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.C.Cir. 1958): “Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” 415 U.S. at 90, 94 S.Ct. at 952, 39 L.Ed.2d 166. Accord, Oburn v. Shapp, supra, 521 F.2d at 151. In the instant case, intervenors faced a loss of income and employee benefits during the thirty-day suspension. This loss is not irreparable; if intervenors are vindicated at their hearings, they will receive backpay and be restored to their respective ranks. Ill The parties stipulated that intervenors “are permanent career service employees of the City of Chicago who cannot be disciplined, suspended, or discharged without just cause and that therefore they have a property interest in their job which . . . cannot be taken without due process of law.” The question," } ]

[ { "docid": "22450122", "title": "", "text": "Davis alleges that after he filed a grievance against Lancellotti and Makram, the doctors continued to retaliate against him by calling him “stupid,” failed to respect his medical confidentiality by sending the results of a blood test to prison officials, and again discontinued providing his high fiber diet. Davis alleges that defendant Terbush “underhandedly tried to hide plaintiffs grievances” against Makram and Lancellotti and that he failed to forward Davis’ grievances to the appeals level within the required time. Davis states that after he filed a grievance against Terbush, Terbush further retaliated against him by speaking to him in a “hostile” manner, “burying” his grievances and discussing Davis’ grievance with another prison official, and that Keane retaliated against Davis’ grievance filings by ordering a “retaliatory cell search.” Defendants contend that Davis’ submissions show that his grievances against Makram and Lancellot-ti went through the necessary appeals, and that Davis has not shown that any of these actions by prison officials constituted adverse action sufficient to state a retaliation claim. “Only retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action for a claim of retaliation.” Dawes, 239 F.3d at 493. See also Thaddeus -X v. Blatter, 175 F.3d 378, 398 (6th Cir.1999) (retaliation against an inmate must be likely to “chill a person of ordinary firmness from continuing to engage” in a protected activity). “Otherwise the retaliatory act is simply de minimis and therefore outside the ambit of constitutional protection.” Dawes, 239 F.3d at 493. In making this determination, the court’s inquiry must be “tailored to the different circumstances in which retaliation claims arise,” bearing in mind that “[prisoners may be required to tolerate more ... than average citizens, before a [retaliatory] action taken against them is considered adverse.” Id. (quoting Thaddeus -X, 175 F.3d at 398). Insulting or disrespectful comments directed at an inmate generally do not rise to this level. Dawes, 239 F.3d at 492 (calling inmate a “rat” not a constitutional violation); see also Morales, 278 F.3d at 131. Thus, Lancellotti and Mak-ram’s “sarcastic” comments" } ]

[ { "docid": "22939419", "title": "", "text": "employees, who may be required to tolerate more than average citizens, before a[ retaliatory] action taken against them is considered adverse.” Id. Dawes has failed to produce evidence that permits us to conclude that, under the circumstances he alleges, a reasonable prisoner would have been deterred from the exercise of his constitutional rights. Indeed, Dawes does nothing more than state in conclusory terms that the references to him as an “informant” and a “rat” for filing the grievance against McArdle opened him up to assault from his fellow inmates, and that this alone was sufficient to deter a reasonable prisoner in the exercise of his constitutional rights. We disagree. Not every unnecessary statement of a prison guard regarding an inmate’s exercise of free speech violates the First Amendment. See, e.g., Riley, 172 F.R.D. at 235. Absent some factual showing that the comments by the prison officials actually risked inciting other inmates against Dawes, we are unwilling simply to assume that prison inmates would be incited, without more, to attack “one of their own” who was labeled an “informant” and a “rat” for complaining to prison supervisors about a prison guard’s conduct. C. Eighth Amendment To establish an Eighth Amendment claim based on prison conditions, as Dawes attempts to do, two showings must be made. See, e.g., Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991); Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir.1996); see also Williams v. Mueller, 13 F.3d 1214, 1216 (8th Cir.1994) (Eighth Amendment apparently violated when officer stood idly by as two inmates beat a third inmate, delayed requesting assistance, and blocked the inmate’s attempt to escape). First, “the deprivation alleged by the prisoner must be in objective terms ‘sufficiently serious’ such that the deprivation ‘denfied] the minimal civilized measure of life’s necessities’ ” — the objective element. Branham v. Meachum, 77 F.3d 626, 630-31 (2d Cir.1996) (alteration in original) (quoting Wilson, 501 U.S. at 297, 111 S.Ct. 2321); see Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (inmate must establish “substantial risk of serious" }, { "docid": "5483931", "title": "", "text": "citizens, before a [retaliatory] action taken against them is considered adverse.’ ” Davis v. Goord, 320 F.3d 346, 352 (2d Cir.2003) (quoting Dawes, 239 F.3d at 493). A prisoner’s claims, moreover, must be examined with skepticism and particular care because they are “prone to abuse since prisoners can claim retaliation for every decision they dislike.” Graham, 89 F.3d at 79 (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983)); accord Dawes, 239 F.3d at 491. The harms alleged by Maxwell here, a delay in processing her arrest, which in the end did not fall outside the normal time period necessary for processing arrestees, or even crediting the time-delay in processing Maxwell’s arrest as alleged by her, a delay in the provision of food, water and sanitary needs, as well as the refusal to voucher money, are not of the kind courts in this circuit have identified as legally sufficient to constitute retaliatory actions. See, e.g., Morales v. Mackalm, 278 F.3d 126, 131-32 (2d Cir.2002) (allegation that plaintiff was transferred to a psychiatric facility in retaliation for filing a sexual harassment grievance against defendant); Henderson, 89 F.3d at 80-81 (allegation that defendants filed false misbehavior reports against plaintiff in retaliation for his leadership in filing a grievance to protest the removal of workshop showers); Colon, 58 F.3d at 872-73 (2d Cir.1995) (allegation that defendant planted contraband in his cell in retaliation for plaintiffs filing two lawsuits against the facility); Jones v. Coughlin, 45 F.3d 677, 680 (2d Cir.1995) (allegation that defendants, in retaliation for plaintiffs filing administrative complaint, filed a false misbehavior report that led to 120 days of punitive segregation); Van Pelt v. Finn, 92 Civ. 2977, 1993 WL 465297, at *4-5 (S.D.N.Y.Nov.12, 1993) (allegation that defendants, upon learning about letters written by plaintiff to defendant’s supervisor, reassigned plaintiff to a less desirable job with lower pay). Rather, the delays and treatment alleged by Maxwell are de minimis inconveniences not unique to her circumstances or singularly directed at her, but of the kind normally experienced by other persons under arrest. The Court finds the alleged retaliatory conduct against Maxwell" }, { "docid": "21165315", "title": "", "text": "Here, plaintiff alleges that Ballachino demanded that plaintiff not write to the Program Deputy again, and insisted that plaintiff report his complaints directly to Ballachino. Plaintiff also alleges that Bal-lachino caused plaintiffs cell to be searched, and plaintiff to submit to a urine test, in retaliation for plaintiffs complaints. Under some circumstances, verbal threats may constitute adverse action, depending on their degree of specificity and the context in which they are uttered. See, e.g., Hepworth v. Suffolk County, No. 2:02-cv-6473, 2006 WL 2844408, at *8-9 (E.D.N.Y. Sept. 29, 2006) (denying summary judgment where “continued verbal threats” that inmate “would receive another beating or be killed” was sufficient “evidence ... such that a reasonable jury could find that the officers unconstitutionally retaliated against [inmate] ... for exercising his First Amendment” rights). Thus, vague intimations of some unspecified harm generally will not rise to the level of adverse action for the purpose of a First Amendment retaliation claim. See, e.g., Bartley v. Collins, No. 95 Civ. 10616, 2006 WL 1289256, at *6 (S.D.N.Y. May 10, 2006) (stating that “verbal threats such as ‘we going to get you, you better drop the suit,’ do not rise to the level of adverse action”) (citing Dawes, 239 F.3d at 493, for the proposition that “[n]ot every unnecessary statement of a prison guard regarding an inmate’s exercise of free speech violates the First Amendment”); Alicea v. Howell, 387 F.Supp.2d 227, 237 (W.D.N.Y.2005) (defendant’s “alleged statements to plaintiff about there being ‘no secrets in prison’ and that plaintiff would ‘have to pay the consequences’ for filing a grievance against [defendant] d[id] not give rise to a First Amendment retaliation claim”); Cruz v. Hillman, No. 01 Civ. 4169, 2002 WL 31045864, at *7 (S.D.N.Y May 16, 2002) (allegation that defendant made statement which “expressed his dislike for inmates who file civil lawsuits, and later came to plaintiffs cell and said ‘Green Haven is an open battlefield, so be careful’ ” was insufficient to state retaliation claim). In the instant case, Plaintiff alleges that Ballachino “started trying to chastise me about writing to [Program Deputy], and he said he" }, { "docid": "22450125", "title": "", "text": "on freedom of speech of retaliations ‘need not be great in order to be actionable.’ ”); Walker v. Pataro, No. 99 Civ. 4607, 2002 WL 664040, at *9 (S.D.N.Y. Apr.23, 2002) (favorably contrasting Dawes in determining that “[t]he test, however, is not whether plaintiff ... himself was chilled (if that were the standard, no plaintiff likely would prevail, for the very commencement of a lawsuit could be used by defendants to argue that the plaintiff was not chilled) ... ”). Therefore, Davis should have the opportunity to attempt to allege facts that would support the inference that the alleged retaliation would have deterred a reasonable inmate from pursuing his grievances. See Morales, 278 F.3d at 131-32 (citations omitted). 2. Causal Connection Between Protected Speech and Adverse Action Davis alleges that Makram and Lancel-lotti retaliated against him for filing his previous lawsuit at Green Haven by, in part, delaying his placement on his medically prescribed high fiber diet and making him wait to be seen by a doctor. These actions occurred prior to Davis filing any grievances against them. Defendants do not dispute that they took adverse action against Davis but claim that the retaliation allegation must be dismissed because “plaintiff alleges no specific facts establishing a causal connection between the adverse actions taken against him by defendants at Woodbourne ... and the filing of his prior lawsuit against the Green Haven officials.” In order to satisfy the causation requirement, allegations must be “sufficient to support the inference that the speech played a substantial part in the adverse action.” Dawes, 239 F.3d at 492 (internal quotation marks and citation omitted). Davis alleges that, at some point after these initial adverse actions, Makram and Lancellotti told him that “they had heard all about [him].” Davis also contends that the initial allegedly retaliatory conduct occurred “immediately” after Davis was transferred from Green Haven, and “there was nothing to prevent” Green Haven defendants from passing on information of his prior lawsuit, though he could not be aware of such communications “because retaliatory plots are by their very nature secret.” None of these contentions, individually" }, { "docid": "18445107", "title": "", "text": "factual allegations, and determine whether defendants are entitled to summary judgment. II. Defendants’ Motion In order to establish a First Amendment retaliation claim, plaintiff must show (1) that he engaged in constitutionally protected speech or conduct, (2) that the defendants took adverse action against him, and (3) that there was a causal connection between the protected activity and the adverse action. Dawes v. Walker, 239 F.3d 489, 492 (2d Cir.2001), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). The Second Circuit has cautioned district courts to approach prisoner claims of retaliation “with skepticism and particular care.” Dawes, 239 F.3d at 491. Such claims are “easily fabricated,” since “virtually any adverse action taken against a prisoner by a prison official — even those otherwise not rising to the level of a constitutional violation — can be characterized as a constitutionally proscribed retaliatory act.” Id.See also Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996) (observing that “[rjetaliation claims by prisoners are ‘prone to abuse’ since prisoners can claim retaliation for every decision they dislike”) (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983)). In the case at bar, defendants contend that plaintiff has failed to allege that he engaged in constitutionally protected conduct. They assert that plaintiff “simply argues that CO Brown retaliated against him for verbally defending another inmate,” and that there “is no first amendment right to verbally defend another inmate against a correction officer.” Defendants’ Mem. of Law (Dkt.# 51) at 6 (citing Nevares v. Morrissey, No. 95 Civ. 1135, 1999 WL 760231 (S.D.N.Y. Sept. 27, 1999)). Plaintiff does not simply allege, however, that he “verbally defended another inmate.” He alleges that he testified on behalf of another inmate (Charles), and in particular, that he testified that Brown had assaulted Charles. See Complaint at 8. Defendants have not disputed plaintiffs assertion that he testified at Charles’s disciplinary hearing. See Defendants’ Response to Plaintiffs Interrogatory (Dkt.# 35) at 1. The facts here are thus clearly distinguishable from those in Ne-vares, in which the court held that “[c]om-plaining" }, { "docid": "5483930", "title": "", "text": "in the prison setting is broad, it is not true that every response to a prisoner’s exercise of a constitutional right gives rise to a retaliation claim.” Dawes v. Walker, 239 F.3d 489, 492-493 (2d Cir.2001). In order to be actionable, retaliation against a prisoner must be likely to “chill a person of ordinary firmness from continuing to engage” in activity protected by the First Amendment. Id.; see also Thaddeus-X v. Blatter, 175 F.3d 378, 397 (6th Cir.1999); Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982) (“It would trivialize the First Amendment to hold that harassment for exercising the right of free speech was always actionable no matter how unlikely to deter a person of ordinary firmness from that exercise.”) “Otherwise, the retaliatory act is simply de minimis and therefore outside the ambit of constitutional protection.” Dawes, 239 F.3d at 493. In making this determination, the court’s inquiry must be “‘tailored to the different circumstances in which retaliation claims arise,’ bearing in mind that ‘prisoners may be required to tolerate more ... than average citizens, before a [retaliatory] action taken against them is considered adverse.’ ” Davis v. Goord, 320 F.3d 346, 352 (2d Cir.2003) (quoting Dawes, 239 F.3d at 493). A prisoner’s claims, moreover, must be examined with skepticism and particular care because they are “prone to abuse since prisoners can claim retaliation for every decision they dislike.” Graham, 89 F.3d at 79 (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983)); accord Dawes, 239 F.3d at 491. The harms alleged by Maxwell here, a delay in processing her arrest, which in the end did not fall outside the normal time period necessary for processing arrestees, or even crediting the time-delay in processing Maxwell’s arrest as alleged by her, a delay in the provision of food, water and sanitary needs, as well as the refusal to voucher money, are not of the kind courts in this circuit have identified as legally sufficient to constitute retaliatory actions. See, e.g., Morales v. Mackalm, 278 F.3d 126, 131-32 (2d Cir.2002) (allegation that plaintiff was transferred to a psychiatric facility in" }, { "docid": "23320884", "title": "", "text": "definition of adverse action is not static across contexts” and “[prisoners may be required to tolerate more than public, employees [and] ... average citizens,” we see no basis for concluding that prisoners should be required to tolerate the theft of their property, including legal documents and medical dietary supplements, as the price of petitioning the courts. Id. at 398. The defendants have offered no authority to the contrary. Instead, they argue that the plaintiff failed to present expert testimony or other evidence about the deterrent effect the defendants’ actions would have on an ordinarily firm prisoner in segregation. Defendants apparently contend that Thaddeus-X imposes a burden on the plaintiff to present independent witness testimony that a given set of actions would deter a hypothetical prisoner of ordinary firmness from engaging in protected conduct. The district court expressed similar ideas. Nothing in our opinion in Thaddeus-X or any subsequent case, however, suggests that separate testimony about the likely effects of certain actions on prisoners of ordinary firmness, in the abstract, is required. Our conclusion in Thaddeus-X that physical threats and a transfer to base level of segregation would be sufficient to deter a person of ordinary firmness from engaging in protected conduct, for example, was not based upon any independent testimony in the record predicting how an average prisoner would react to these actions. 175 F.3d at 398. This was a conclusion that could be drawn simply from the facts concerning the nature of the threats and the conditions of confinement on the base level. The plaintiffs evidentiary burden is merely to establish the factual basis for his claim that the retaliatory acts amounted to more than a de minimis injury. Accord Dawes v. Walker, 239 F.3d 489, 493 (2d Cir.2001) (holding that prisoner’s eviden-tiary burden under “ordinary firmness” standard was to show that guards’ references to him as an “informant” or “rat” “actually risked inciting other inmates against the [plaintiff],” and was not merely harmless name-calling). Once this threshold has been passed, it is up to the trier of fact to determine whether, under the circumstances, the acts were capable" }, { "docid": "23653960", "title": "", "text": "grievance committee subsequently interviewed Mentneck, and sometime before August 26, 1997, certain individual defendants including Mentneck placed Morales in Woodbourne’s psychiatric unit and then had him transferred first to Sullivan Correctional Facility Mental Health Unit and then to the Central New York Psychiatric Center. Mentneck’s alleged involvement in the decision to transfer Morales coupled with the short time frame between the grievance and the transfer supports an inference that defendants had a retaliatory motive. Cf. Dawes, 239 F.3d at 492 (plaintiffs “failure to set forth a time frame for the alleged events ... precludes inference of a causal relationship”). The only remaining question is whether Morales adequately alleges that defendants subjected him to an adverse action. To adequately plead an adverse action, a plaintiff must allege that defendants subjected him to “conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.” Id. at 493. This test is not satisfied by Morales’ allegation that Mentneck called him a stoolie in front of other inmates. Id. at 492 (telling other inmates that plaintiff was an informant does not constitute a sufficiently adverse action). However, at this early stage, the allegation that defendants transferred Morales to a psychiatric facility must be construed as describing an adverse action. Morales should have the opportunity to develop facts that would demonstrate that the prospect of confinement in a psychiatric facility would deter a reasonable inmate from pursuing grievances. Cf. Allah v. Seiverling, 229 F.3d 220, 224-25 (3d Cir.2000) (indicating that placement in administrative segregation could be an adverse action); Sealey v. Giltner, 116 F.3d 47, 52 (2d Cir.1997) (emphasizing “desirability of fact-finding before determining whether a prisoner has a liberty interest in remaining free from segregated confinement”). We therefore vacate that portion of the district court’s judgment that dismissed plaintiffs claim that defendants Mentneck and others retaliated against him for filing a grievance by placing him in Wood-bourne’s psychiatric unit, the Sullivan Correctional Facility’s psychiatric unit, and the Central New York Psychiatric Center. III. Sexual Harassment Defendants argue that we should not extend Lawrence and Nussle v. Willette," }, { "docid": "22450124", "title": "", "text": "do not, without more, constitute an adverse action. Similarly, Davis’ allegations regarding conversations between Terbush and other prison officials are speculative and complaints of Terbush’s “hostile manner” are de minimis. However, it is possible that there were adverse effects resulting from his not being given his high fiber diet or having to wait for a medical appointment, and Davis should be given an opportunity to set those forth. In addition, although his grievances against Lancellotti and Makram were eventually resolved, Davis’ repeated efforts to surmount Terbush’s alleged barriers to timely filing could be construed as efforts beyond what is reasonably expected of an inmate with “ordinary firmness.” Dawes, 239 F.3d at 493. In other words, Davis should not be denied remedy because his extraordinary efforts resulted in the resolution of grievances that would have deterred a “similarly situated individual of ordinary firmness from exercising his constitutional rights.” Id.; Crawford-El v. Britton, 93 F.3d 813, 826 (D.C.Cir. 1996) (en banc), rev’d on other grounds, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (“the effect on freedom of speech of retaliations ‘need not be great in order to be actionable.’ ”); Walker v. Pataro, No. 99 Civ. 4607, 2002 WL 664040, at *9 (S.D.N.Y. Apr.23, 2002) (favorably contrasting Dawes in determining that “[t]he test, however, is not whether plaintiff ... himself was chilled (if that were the standard, no plaintiff likely would prevail, for the very commencement of a lawsuit could be used by defendants to argue that the plaintiff was not chilled) ... ”). Therefore, Davis should have the opportunity to attempt to allege facts that would support the inference that the alleged retaliation would have deterred a reasonable inmate from pursuing his grievances. See Morales, 278 F.3d at 131-32 (citations omitted). 2. Causal Connection Between Protected Speech and Adverse Action Davis alleges that Makram and Lancel-lotti retaliated against him for filing his previous lawsuit at Green Haven by, in part, delaying his placement on his medically prescribed high fiber diet and making him wait to be seen by a doctor. These actions occurred prior to Davis filing any" }, { "docid": "21165316", "title": "", "text": "that “verbal threats such as ‘we going to get you, you better drop the suit,’ do not rise to the level of adverse action”) (citing Dawes, 239 F.3d at 493, for the proposition that “[n]ot every unnecessary statement of a prison guard regarding an inmate’s exercise of free speech violates the First Amendment”); Alicea v. Howell, 387 F.Supp.2d 227, 237 (W.D.N.Y.2005) (defendant’s “alleged statements to plaintiff about there being ‘no secrets in prison’ and that plaintiff would ‘have to pay the consequences’ for filing a grievance against [defendant] d[id] not give rise to a First Amendment retaliation claim”); Cruz v. Hillman, No. 01 Civ. 4169, 2002 WL 31045864, at *7 (S.D.N.Y May 16, 2002) (allegation that defendant made statement which “expressed his dislike for inmates who file civil lawsuits, and later came to plaintiffs cell and said ‘Green Haven is an open battlefield, so be careful’ ” was insufficient to state retaliation claim). In the instant case, Plaintiff alleges that Ballachino “started trying to chastise me about writing to [Program Deputy], and he said he was getting tired of me writing his officers up ... it seems like all you want to do is write grievances.” (Dkt. # 42, Ex. A at 53.) Those alleged statements do not nearly approach the level of a specificity or concrete harm required to support a First Amendment retaliation claim. As for plaintiffs allegation concerning the retaliatory cell search, the Supreme Court has stated that inmates have no constitutional protection from cell searches, even those conducted for retaliatory reasons. Hudson v. Palmer, 468 U.S. 517, 530, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); see also Lashley v. Wakefield, 367 F.Supp.2d 461, 470 (W.D.N.Y.2005). It is well-settled, then, that plaintiff cannot base a retaliation claim against defendant Ballachino based on a cell search. Salahuddin v. Mead, No. 95 Civ. 8581, 2002 WL 1968329, *5 (S.D.N.Y. Aug. 26, 2002) (dismissing First Amendment retaliation claim based on cell searches). With respect to the allegedly retaliatory urine test, I am not convinced that plaintiff has established a causal connection between the test and plaintiffs constitutionally protected activity, or" }, { "docid": "21165313", "title": "", "text": "guards and other prison officials. In order to establish a First Amendment retaliation claim, plaintiff must show (1) that he engaged in constitutionally protected speech or conduct, (2) that the defendants took adverse action against him, and (3) that there was a causal connection between the protected activity and the adverse action. Dawes v. Walker, 239 F.3d 489, 492 (2d Cir.2001), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). The Second Circuit has admonished district courts to approach prisoner retaliation claims “with skepticism and particular care,” because “virtually any adverse action taken against a prisoner by a prison official-even those otherwise not rising to the level of a constitutional violation-can be characterized as a constitutionally proscribed retaliatory act.” Dawes, 239 F.3d at 491. Applying these principles, I find that Ballachino is entitled to summary judg.ment. Although it is undisputed that plaintiffs filing of grievances constituted protected conduct, see Graham v. Henderson, 89 F.3d 75, 80 (2d Cir.1996); Franco v. Kelly, 854 F.2d 584, 590 (2d Cir.1988), plaintiff has failed to adduce sufficient evidence to give rise to an issue of fact as to the “adverse action” prong of the test set forth in Dawes. Adverse action, defined objectively, is “retaliatory conduct ‘that would deter a similarly situated individual of ordinary firmness from exercising ... constitutional rights.’ ” Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir.2004) (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir.2003)). In that regard, the Second Circuit has observed that “[prisoners may be required to tolerate more than public employees, who may be required to tolerate more than average citizens, before a [retaliatory] action taken against them is considered adverse.” Dawes, 239 F.3d at 491 (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir.1999) (en banc) (per curiam)). If a retaliatory act against an inmate would not be likely to “chill a person of ordinary firmness from continuing to engage” in a protected activity, “the retaliatory act is simply de minimis and therefore outside the ambit of constitutional protection.” Dawes, 239 F.3d at 493." }, { "docid": "22647617", "title": "", "text": "the definition of protected conduct, however, the definition of adverse action is not static across contexts. Prisoners may be required to tolerate more than public employees, who may be required to tolerate more than average citizens, before an action taken against them is considered adverse. The benefits of such a standard are that it is an objective inquiry, capable of being tailored to the different circumstances in which retaliation claims arise, and capable of screening the most trivial of actions from constitutional cognizance. We emphasize that while certain threats or deprivations are so de minimis that they do not rise to the level of being constitutional violations, this threshold is intended to weed out only inconsequential actions, and is not a means whereby solely egregious retaliatory acts are allowed to proceed past summary judgment. Retaliation against a prisoner is actionable if it is capable of deterring a person of ordinary firmness from exercising his or her right to access the courts. The question before us in the case sub judice, then, is whether a person of ordinary firmness would be deterred from exercising a right to access the courts by the actions taken against X and Bell. We need not pause for long in the case of plaintiff X: his allegations, if true, certainly meet the standard. Harassment, physical threats, and transfer to the area of the prison used to house mentally disturbed inmates, especially combined with the conditions allegedly present there, would likely have a strong deterrent effect. With respect to plaintiff Bell, the question is whether there is a genuine issue of material fact regarding the deterrent effect of the claimed deliberate harassment and cold meals that would continue unless and until he dropped his lawsuit against the warden. J.A. at 18 (Complaint ¶¶ 28, 24). Since we believe that the district court applied an inappropriate test in granting summary judgment on this issue, we remand for a determination by the district court in the first instance under the standard we have articulated today. 3. Causal Connection Finally, the third element — a causal connection between the protected" }, { "docid": "21165317", "title": "", "text": "was getting tired of me writing his officers up ... it seems like all you want to do is write grievances.” (Dkt. # 42, Ex. A at 53.) Those alleged statements do not nearly approach the level of a specificity or concrete harm required to support a First Amendment retaliation claim. As for plaintiffs allegation concerning the retaliatory cell search, the Supreme Court has stated that inmates have no constitutional protection from cell searches, even those conducted for retaliatory reasons. Hudson v. Palmer, 468 U.S. 517, 530, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); see also Lashley v. Wakefield, 367 F.Supp.2d 461, 470 (W.D.N.Y.2005). It is well-settled, then, that plaintiff cannot base a retaliation claim against defendant Ballachino based on a cell search. Salahuddin v. Mead, No. 95 Civ. 8581, 2002 WL 1968329, *5 (S.D.N.Y. Aug. 26, 2002) (dismissing First Amendment retaliation claim based on cell searches). With respect to the allegedly retaliatory urine test, I am not convinced that plaintiff has established a causal connection between the test and plaintiffs constitutionally protected activity, or that this one urine test constituted adverse action sufficient to support a First Amendment claim. Plaintiffs allegation that the test constituted “harassment because I don’t do drugs,” (Dkt. # 42, Ex. A at 55), fails to establish that the test was not administered for a legitimate purpose, or that there was a nexus between the test and plaintiffs protected activity. Plaintiff does not allege that Ballachino ordered or administered the test, see Brown v. Goord, No. 9:04-CV-0785, 2007 WL 607396, *15 (N.D.N.Y. Feb. 20, 2007), nor does he establish any close the temporal proximity between the filing of a grievance by plaintiff and the alleged retaliatory act, Colon v. Coughlin, 58 F.3d 865, 872-73 (2d Cir.1995). Even if plaintiff had sufficiently established such a nexus, however, it bears repeating that “[p]risoners may be required to tolerate more than public employees, who may be required to tolerate more than average citizens, before a [retaliatory] action taken against them is considered adverse.” Dawes, 239 F.3d at 491. Urine tests are a fact of prison life, see Green" }, { "docid": "16685899", "title": "", "text": "and the adverse action.” Dawes v. Walker, 239 F.3d 489, 492 (2d Cir.2001), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir.2004). As a general interpretive matter, “the Second Circuit has admonished district courts to approach prisoner retaliation claims ‘with skepticism and particular care,’ because ‘virtually any adverse action taken against a prisoner by a prison official — even those otherwise not rising to the level of a constitutional violation — can be characterized as a constitutionally proscribed retaliatory act.’ ” Bumpus v. Canfield, 495 F.Supp.2d 316, 325 (W.D.N.Y.2007) (quoting Dawes, 239 F.3d at 491). As concerns the first prong, whether the “speech or conduct at issue was protected” by the First Amendment, “[i]t is well established that the filing of [a] prison grievance[ ] ... [is a] constitutionally protected activit[y].” McClenton v. Menifee, 05 Civ. 2844(JGK), 2006 WL 2474872, at *12 (S.D.N.Y. Aug. 22, 2006) (citing Graham v. Henderson, 89 F.3d 75, 80 (2d Cir.1996)); Salahuddin v. Mead, No. 95 Civ. 8581(MBM), 2002 WL 1968329 at *3 (S.D.N.Y. Aug. 26, 2002). Plaintiff alleges that Dr. Supple retaliated against him for a previous grievance he filed against Dr. Supple. (Compl. at 10). Thus, Plaintiff has satisfied the first prong of the retaliation analysis. As for the second prong, the Second Circuit has held that in the prison context, “[o]nly retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action for a claim of retaliation.” Dawes, 239 F.3d at 493; Davis v. Goord, 320 F.3d 346, 353 (2d Cir.2003). Taking Plaintiffs allegations as true, it is plausible that a denial of medical evaluation, treatment, and adequate pain medication would suffice to deter a similarly situated individual of ordinary firmness from filing a constitutionally protected grievance against a prison doctor. See Williams v. Fisher, No. 02 Civ. 4558(LMM), 2003 WL 22170610, at *10-11 (S.D.N.Y. Sept. 18, 2003) (“Allegations that [a prison doctor] revoked Plaintiffs necessary medical rehabilitative treatment because he filed" }, { "docid": "23653959", "title": "", "text": "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). Because Morales’ complaint alleges civil rights violations and he proceeded pro se in the district court, we must construe his complaint with particular generosity. Vital v. Interfaith Med. Ctr., 168 F.3d 615, 619 (2d Cir.1999) In order to state an actionable claim for retaliation, Morales “must advance non-conclusory allegations establishing: (1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.” Dawes v. Walker, 239 F.3d 489, 492 (2d Cir.2001). Morales clearly satisfies the first test because filing a grievance is protected activity. Graham v. Henderson, 89 F.3d 75, 80 (2d Cir.1996). Plaintiff also states a prima facie case on the third element, causation. He alleges that he filed his grievance on August 4, 1997, the grievance committee subsequently interviewed Mentneck, and sometime before August 26, 1997, certain individual defendants including Mentneck placed Morales in Woodbourne’s psychiatric unit and then had him transferred first to Sullivan Correctional Facility Mental Health Unit and then to the Central New York Psychiatric Center. Mentneck’s alleged involvement in the decision to transfer Morales coupled with the short time frame between the grievance and the transfer supports an inference that defendants had a retaliatory motive. Cf. Dawes, 239 F.3d at 492 (plaintiffs “failure to set forth a time frame for the alleged events ... precludes inference of a causal relationship”). The only remaining question is whether Morales adequately alleges that defendants subjected him to an adverse action. To adequately plead an adverse action, a plaintiff must allege that defendants subjected him to “conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.” Id. at 493. This test is not satisfied by Morales’ allegation that Mentneck called him a stoolie in front of other inmates. Id. at 492 (telling" }, { "docid": "21165318", "title": "", "text": "that this one urine test constituted adverse action sufficient to support a First Amendment claim. Plaintiffs allegation that the test constituted “harassment because I don’t do drugs,” (Dkt. # 42, Ex. A at 55), fails to establish that the test was not administered for a legitimate purpose, or that there was a nexus between the test and plaintiffs protected activity. Plaintiff does not allege that Ballachino ordered or administered the test, see Brown v. Goord, No. 9:04-CV-0785, 2007 WL 607396, *15 (N.D.N.Y. Feb. 20, 2007), nor does he establish any close the temporal proximity between the filing of a grievance by plaintiff and the alleged retaliatory act, Colon v. Coughlin, 58 F.3d 865, 872-73 (2d Cir.1995). Even if plaintiff had sufficiently established such a nexus, however, it bears repeating that “[p]risoners may be required to tolerate more than public employees, who may be required to tolerate more than average citizens, before a [retaliatory] action taken against them is considered adverse.” Dawes, 239 F.3d at 491. Urine tests are a fact of prison life, see Green v. Berge, 354 F.3d 675, 679 (7th Cir.2004) (“Testing prisoners’ blood, urine, saliva, or hair for drugs is routine and does not require individual suspicion”) (Easter-brook, J., concurring), and I do not find that one urine test would chill a prisoner of ordinary firmness from filing grievances. This act is therefore “simply de minimis and therefore outside the ambit of constitutional protection.” Dawes, 239 F.3d at 493. Y. Claim Against C.O. Materne Plaintiff alleges that Materne violated his constitutional rights through deliberately denying him access to the IGRC. More specifically, plaintiff claims that Mat-terne delayed the processing of his grievances by failing to code his grievances properly. (Dkt. # 1 at 7-9.) This claim must be dismissed. The refusal to process an inmate’s grievance, or failure to see to it that grievances are properly processed, does not give rise to a claim under § 1983. Flick v. Alba, 932 F.2d 728, 729 (8th Cir.1991). See also Buckley v. Barlow, 997 F.2d 494, 495-96 (8th Cir.1993) (complaint failed to state a claim under § 1983 because" }, { "docid": "5483929", "title": "", "text": "after being returned from the hospital. (Id.) Therefore, subtracting the time Maxwell spent in the hospital, based on the submissions made by Maxwell herself, which indicate that she had received medical treatment at Belle-vue Hospital at around 10:00 a.m., she appears to have been at the precinct for less than three hours before her arrest was processed — which occurred at around 1:20 p.m. Although Maxwell indicates that the delay was actually six hours, (Maxwell Decl. ¶ 52), her own documentary evidence contradicts this claim. Since, under recognized New York guidelines and practices, “the time it ordinarily should take to process an arres- tee from the point of transfer from the precinct to Central Booking is three hours,” Gonzalez v. Bratton, 147 F.Supp.2d 180, 201 (S.D.N.Y.2001), the nature of the alleged retaliatory conduct must be considered. Specifically, there is a question as to whether the alleged acts of retaliation are more than de minimis. See Davidson v. Chestnut, 198 F.3d 144, 150 (2d Cir.1999). “While ... the scope of conduct that can constitute actionable retaliation in the prison setting is broad, it is not true that every response to a prisoner’s exercise of a constitutional right gives rise to a retaliation claim.” Dawes v. Walker, 239 F.3d 489, 492-493 (2d Cir.2001). In order to be actionable, retaliation against a prisoner must be likely to “chill a person of ordinary firmness from continuing to engage” in activity protected by the First Amendment. Id.; see also Thaddeus-X v. Blatter, 175 F.3d 378, 397 (6th Cir.1999); Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982) (“It would trivialize the First Amendment to hold that harassment for exercising the right of free speech was always actionable no matter how unlikely to deter a person of ordinary firmness from that exercise.”) “Otherwise, the retaliatory act is simply de minimis and therefore outside the ambit of constitutional protection.” Dawes, 239 F.3d at 493. In making this determination, the court’s inquiry must be “‘tailored to the different circumstances in which retaliation claims arise,’ bearing in mind that ‘prisoners may be required to tolerate more ... than average" }, { "docid": "22939418", "title": "", "text": "‘retaliation’ may be so de minimis as not to inhibit or punish an inmate’s right of free speech. Many verbal responses by officials of resentment or even ridicule would fall into this safe harbor of permitted response.”). Only retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action for a claim of retaliation. See Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir.2000); Thaddeus-X, 175 F.3d at 398; Crawford-El v. Britton, 93 F.3d 813, 826 (D.C.Cir.1996) (en banc), rev’d on other grounds, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998); Bart, 677 F.2d at 625. Otherwise, the retaliatory act is simply de minimis and therefore outside the ambit of constitutional protection. See, e.g., Davidson v. Chestnut, 193 F.3d 144, 150 (2d Cir.1999) (per curiam). This objective inquiry is “not static across contexts,” but rather must be “tailored to the different circumstances in which retaliation claims arise.” Thaddeus-X, 175 F.3d at 398. “Prisoners may be required to tolerate more than public employees, who may be required to tolerate more than average citizens, before a[ retaliatory] action taken against them is considered adverse.” Id. Dawes has failed to produce evidence that permits us to conclude that, under the circumstances he alleges, a reasonable prisoner would have been deterred from the exercise of his constitutional rights. Indeed, Dawes does nothing more than state in conclusory terms that the references to him as an “informant” and a “rat” for filing the grievance against McArdle opened him up to assault from his fellow inmates, and that this alone was sufficient to deter a reasonable prisoner in the exercise of his constitutional rights. We disagree. Not every unnecessary statement of a prison guard regarding an inmate’s exercise of free speech violates the First Amendment. See, e.g., Riley, 172 F.R.D. at 235. Absent some factual showing that the comments by the prison officials actually risked inciting other inmates against Dawes, we are unwilling simply to assume that prison inmates would be incited, without more, to attack “one of their own” who was" }, { "docid": "21165314", "title": "", "text": "Cir.1988), plaintiff has failed to adduce sufficient evidence to give rise to an issue of fact as to the “adverse action” prong of the test set forth in Dawes. Adverse action, defined objectively, is “retaliatory conduct ‘that would deter a similarly situated individual of ordinary firmness from exercising ... constitutional rights.’ ” Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir.2004) (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir.2003)). In that regard, the Second Circuit has observed that “[prisoners may be required to tolerate more than public employees, who may be required to tolerate more than average citizens, before a [retaliatory] action taken against them is considered adverse.” Dawes, 239 F.3d at 491 (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir.1999) (en banc) (per curiam)). If a retaliatory act against an inmate would not be likely to “chill a person of ordinary firmness from continuing to engage” in a protected activity, “the retaliatory act is simply de minimis and therefore outside the ambit of constitutional protection.” Dawes, 239 F.3d at 493. Here, plaintiff alleges that Ballachino demanded that plaintiff not write to the Program Deputy again, and insisted that plaintiff report his complaints directly to Ballachino. Plaintiff also alleges that Bal-lachino caused plaintiffs cell to be searched, and plaintiff to submit to a urine test, in retaliation for plaintiffs complaints. Under some circumstances, verbal threats may constitute adverse action, depending on their degree of specificity and the context in which they are uttered. See, e.g., Hepworth v. Suffolk County, No. 2:02-cv-6473, 2006 WL 2844408, at *8-9 (E.D.N.Y. Sept. 29, 2006) (denying summary judgment where “continued verbal threats” that inmate “would receive another beating or be killed” was sufficient “evidence ... such that a reasonable jury could find that the officers unconstitutionally retaliated against [inmate] ... for exercising his First Amendment” rights). Thus, vague intimations of some unspecified harm generally will not rise to the level of adverse action for the purpose of a First Amendment retaliation claim. See, e.g., Bartley v. Collins, No. 95 Civ. 10616, 2006 WL 1289256, at *6 (S.D.N.Y. May 10, 2006) (stating" }, { "docid": "16685900", "title": "", "text": "v. Mead, No. 95 Civ. 8581(MBM), 2002 WL 1968329 at *3 (S.D.N.Y. Aug. 26, 2002). Plaintiff alleges that Dr. Supple retaliated against him for a previous grievance he filed against Dr. Supple. (Compl. at 10). Thus, Plaintiff has satisfied the first prong of the retaliation analysis. As for the second prong, the Second Circuit has held that in the prison context, “[o]nly retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action for a claim of retaliation.” Dawes, 239 F.3d at 493; Davis v. Goord, 320 F.3d 346, 353 (2d Cir.2003). Taking Plaintiffs allegations as true, it is plausible that a denial of medical evaluation, treatment, and adequate pain medication would suffice to deter a similarly situated individual of ordinary firmness from filing a constitutionally protected grievance against a prison doctor. See Williams v. Fisher, No. 02 Civ. 4558(LMM), 2003 WL 22170610, at *10-11 (S.D.N.Y. Sept. 18, 2003) (“Allegations that [a prison doctor] revoked Plaintiffs necessary medical rehabilitative treatment because he filed a grievance are sufficient to satisfy the second element of a retaliation claim [for the purposes of a motion to dismiss.]”). The third prong requires a “causal connection” connection between the protected conduct and the adverse action. Garcia v. Watts, No. 08 Civ. 7778(JSR), 2009 WL 2777085, at *11 (S.D.N.Y. Sept. 1, 2009). A plaintiff must allege facts suggesting that the protected conduct was a “ ‘substantial or motivating factor’ in the prison official’s decision to take action against [him].” Smith v. Christopher, No. 9:06 Civ. 1196(LEK)(DEP), 2008 WL 4283519, at *13 (N.D.N.Y. Sept. 18, 2008) quoting Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). Circumstantial facts indicating a retaliatory motive include “(i) the temporal proximity between the protected activity and the alleged retaliatory act; (ii) the inmate’s pri- or good disciplinary record; (iii) vindication at a hearing on the matter; and (iv) statements by the defendant concerning his motivation.” Baskerville v. Blot, 224 F.Supp.2d 723, 732-33 (S.D.N.Y.2002) (citing Colon v. Coughlin," } ]

[ { "docid": "4845037", "title": "", "text": "court’s grant of summary judgment is de novo, assessing the facts and the inferences to be drawn from them in the light most favorable to the non-moving party. Valley Forge Ins. Co. v. Field, 670 F.3d 93, 96-97 (1st Cir.2012). All of Hightower’s claims on appeal present questions of law, which we review de novo. United States v. Rehlander, 666 F.3d 45, 47 (1st Cir.2012) (“The issues before us are legal and our review is therefore de novo.”). Hightower raises three arguments on appeal: (1) that the revocation of her license, and Massachusetts’s firearms licensing scheme, violate the Second Amendment; (2) that the same revocation and licensing scheme violate the Equal Protection Clause of the Fourteenth Amendment; and (3) that the revocation violated the Due Process Clause of the Fourteenth Amendment. The defendants argue that Hightower’s Second Amendment claim is not ripe. We address ripeness and other preliminary matters before turning to each of Hightower’s claims. A. Preliminary Issues Hightower, has met the requirements for both standing and ripeness to assert claims for denial of procedural due process and equal protection, and for violation of any Second Amendment rights arising from the revocation of her license. As to standing to bring at least claims as to the Class A license, it is clear that the revocation of Hightower’s license constitutes an injury that suffices to satisfy the minimum requirements of Article III standing, regardless of whether Hightower can apply for another license. See Katz v. Pershing, LLC, 672 F.3d 64, 71-72 (1st Cir.2012) (outlining elements of Article III standing); see also, e.g., Parker v. District of Columbia, 478 F.3d 370, 376 (D.C.Cir. 2007) (“We have consistently treated a license or permit denial pursuant to a state or federal administrative scheme as an Article III injury.”), aff'd sub nom. District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Hightower’s as-applied claim extends only to the characteristics of the license that was revoked — a Class A unrestricted license that allows for carrying of concealed, large capacity weapons outside the home. Hightower lacks standing to raise" } ]

[ { "docid": "12997432", "title": "", "text": "to the complaint as Exhibit A. (Id.). Plaintiff alleges that this FACTA violation “exposed [him] to at least an increased risk of identity theft.... ” (Id at ¶ 44). LEGAL STANDARD As stated, Defendants move to dismiss Plaintiffs complaint pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1) on the basis that Plaintiff has failed to allege facts sufficient to establish Article III standing, and under Rule 12(b)(6) for failing to state a claim upon which relief can be granted. “A motion to dismiss for want of standing is ... properly brought pursuant to Rule 12(b)(1), because standing is a jurisdictional matter.” Constitution Party of Pa. v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014). Rule 12(b)(1) challenges may be either facial or factual challenges. Id. A facial challenge asserts that the complaint does not allege sufficient grounds to establish subject matter jurisdiction. Id. Where a Rule 12(b)(1) motion is filed prior to an answer, as is the case here, it will be considered a facial challenge to jurisdiction. Id. at 358. When considering such a facial challenge, a court must apply the same standard of review that would apply on a motion to dismiss under Rule 12(b)(6). Id. As such, well-pleaded factual allegations are taken as true, and reasonable inferences are drawn in the plaintiffs favor. Id. The complaint will be dismissed for lack of standing only if it appears that the plaintiff will not be able to assert a colorable claim of subject matter jurisdiction. Cardio-Med. Assocs., Ltd. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983). A court may grant a motion to dismiss an action under Rule 12(b)(6) if the complaint “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion to dismiss, a court must “accept all of the complaint’s, well-pleaded facts as true, but may disregard any legal conclusions.” Fowler, 578 F.3d at 210-11. The court must determine “whether the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.’ ” Id." }, { "docid": "4853637", "title": "", "text": "[1]. II. LEGAL STANDARD Defendant moves to dismiss Plaintiffs Complaint pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim, but the Court only reaches the former. “Federal courts are courts of limited jurisdiction” and can adjudicate only those cases entrusted to them by the Constitution or an Act of Congress. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The Court begins with the presumption that it does not have subject matter jurisdiction over a case. Id. at 377, 114 S.Ct. 1673. In order to survive a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject matter jurisdiction. Moms Against Mercury v. FDA 483 F.3d 824, 828 (D.C.Cir.2007). In determining whether there is jurisdiction, the Court may “consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193,198 (D.C.Cir.2003) (citations omitted). “At the motion to dismiss stage, counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact.” Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1106 (D.C.Cir.2005). “Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1),” the factual allegations in the complaint “will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd., 503 F.Supp.2d 163, 170 (D.D.C.2007) (internal citations and quotation marks omitted). III. DISCUSSION Plaintiffs Complaint seeks an order requiring the USCIS to reverse its previous denial of Real Technologies’ 1-140 visa petition, and Plaintiffs 1-485 application to adjust status and 1-765 applications for employment authorization. Defendants assert that the Court lacks subject matter jurisdiction over Plaintiffs claims because Plaintiff lacks standing to challenge the denial" }, { "docid": "4853660", "title": "", "text": "foregoing reasons, the Court finds Plaintiff lacks standing to pursue his Complaint. Plaintiff has alleged a redressable injury from the denial of his employer’s 1-140 visa petition sufficient to show constitutional standing. However, Plaintiffs interests run contrary to the Congressional purposes of the labor certification process and employment preference visas, and therefore Plaintiff lacks prudential standing to challenge the denial of the 1-140 petition. Consequently, the Court lacks jurisdiction to require Defendants to reopen and approve the 1-140 petition which formed the basis for Plaintiffs 1-485 application for adjustment of status, which in turn is required for approval of Plaintiffs 1-765 applications for employment authorization. Therefore, the Court cannot redress any injury Plaintiff might allege from the denial of these applications, and Plaintiff lacks standing to challenge the denial of his 1-485 and 1-765 applications. Accordingly, Defendants’ [5] Motion to Dismiss Plaintiffs Complaint Under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) is GRANTED. Defendant’s motion to dismiss for lack of subject matter jurisdiction is GRANTED. Defendant’s motion to dismiss for failure to state a claim is not reached based on the Court’s lack of jurisdiction. An appropriate Order accompanies this Memorandum Opinion. . See [6] Pl.’s Opp’n; [7] Dels.’ Reply. . Although the parties did not raise the issue in their briefs, out of an abundance of caution the Court required the parties to indicate whether or not 8 U.S.C. § 1252(a)(2)(B) barred the Court from reviewing the denial of the 1-140 petition filed on Plaintiff’s behalf. 01/25/12 Order, ECF No. [10]. The parties contend, and the Court agrees, that § 1252(a)(2)(B) precludes judicial review of discretionary decisions not at issue in this case, and therefore does not itself preclude the Court from exercising subject matter jurisdiction in this case. Resp. to Order of the Ct„ ECF No. [11], . Defendants note that “USCIS regulations implementing the employment-based visa petition process contemplate the employer-petitioner’s interests.” Defs.’ Mot. at 7. However, Defendants fail to explain how agency regulations implicate the Court's constitutional or prudential standing analysis, and therefore the Court does not address the regulations. . Even though adjustment to" }, { "docid": "16424107", "title": "", "text": "Board’s denial of Liberty Tower’s application had the effect of prohibiting the provision of personal wireless service, contrary to the requirements of 47 U.S.C. § 332(c)(7)(B)(i)(II). (Compl. ¶ 31). Count II of Plaintiffs Complaint alleges that the Zoning Hearing Board violated the requirement of 47 U.S.C. § 332(c)(7)(B)(iii), requiring that a denial of a request to construct personal wireless services facilities be in writing and supported by substantial evidence contained in a written record. (Compl. ¶ 34) On May 6, 2010, Nathan Edelstein filed a Motion to Intervene (Doc. 3) as a defendant in the instant action. On May 11, 2010, Lauren Templeton filed a Motion to Intervene (Doc. 4) as a defendant in this case. Lastly, on May 12, 2010, Lower Makefield Township filed a Motion to Intervene (Doc. 5) as a defendant in this case. This Court issued an Order on June 12, 2010 (Doc. 8) granting each of these motions. Defendants have moved to dismiss, pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction and pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted. Defendants argue that Plaintiff lacks standing to sue under the TCA. Alternatively, Defendants argue that this Court lacks jurisdiction because the claims do not present a case or controversy under Article III of the United States Constitution. The Court now addresses the pending motions. LEGAL STANDARD A. Motion to Dismiss Pursuant to Federal Rule 12(b)(1) On a motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(1), dismissal is warranted where a court lacks subject matter jurisdiction over a case. Rule 12(b)(1) motions are either facial or factual challenges. CNA v. United, States, 535 F.3d 132, 139. (3d Cir.2008). A facial attack concerns the sufficiency of the pleadings, whereas a factual attack is a dispute over the existence of certain jurisdictional facts alleged by the plaintiff. Id. (citing United States ex rel. Atkinson v. PA. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir.2007)). “In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the" }, { "docid": "19762559", "title": "", "text": "Wilkett v. I.C.C., 710 F.2d 861 (D.C.Cir.1983) (reviewing denial of application for expanded trucking license); see also City of Bedford v. F.E.R.C., 718 F.2d 1164, 1168 (D.C.Cir.1983) (describing wrongful denial of a preliminary hydroelectric permit as an injury warranting review). The interests injured by an adverse licensing determination may be interests protected at common law, or they may be created by statute. And of course, a licensing decision can also trench upon constitutionally protected interests, see, e.g., Dist. Intown Props. Ltd. P’ship v. District of Columbia, 198 F.3d 874 (D.C.Cir.1999) (reviewing District of Columbia’s denial of a building permit under the Takings Clause); Berger v. Bd. of Psychologist Exam’rs, 521 F.2d 1056 (D.C.Cir.1975) (reviewing District of Columbia’s denial of a license to practice psychology under the Due Process Clause), which will also give rise to Article III injury. At oral argument, counsel for the District maintained that we should not view this as a licensing case for standing purposes because D.C.’s firearm registration system amounts to a complete prohibition on handgun ownership. The District argues that we must analyze appellants’ standing exclusively under our pre-en-forcement precedents, Seegars and Nave-gar. We disagree on both counts. The District does not completely prohibit handgun registration. See D.C.Code § 7-2502.02(a)(4) (allowing certificates for pistols already registered in the District prior to 1976); D.C.Code § 7-2502.02(b) (excluding retired police officers of the Metropolitan Police Department from the ban on pistol registration). Had Heller been a retired police officer, presumably the District would have granted him a registration certificate. The same would be true if Heller had attempted to register a long gun, as opposed to a handgun. In any event, Heller has invoked his rights under the Second Amendment to challenge the statutory classifications used to bar his ownership of a handgun under D.C. law, and the formal process of application and denial, however routine, makes the injury to Heller’s alleged constitutional interest concrete and particular. He is not asserting that his injury is only a threatened prosecution, nor is he claiming only a general right to handgun ownership; he is asserting a right to" }, { "docid": "22878796", "title": "", "text": "court reinstate their state law claims on remand. Given the result we reach on the federal claims, the district court acted well within its discretion in dismissing appellants' state law claims pursuant to 28 U.S.C.§ 1367(c)(3). Accordingly, we will not address the issue in any further detail. . Preliminarily, we point out that we have not overlooked the fact that appellees moved to dismiss on standing grounds pursuant to Rule 12(b)(1), claiming that the nature of appellants' injury allegations demonstrated that they suffered no cognizable \"injury in fact” under section 1964(c) of RICO, and therefore that the district court lacked subject matter jurisdiction over appellants’ federal claims pursuant to Article III of the United States Constitution. See Aetna's Br. in Supp. of Mot. to Dismiss at 12 (no. 3 on district court docket). Given that the district court’s order did not state whether it was dismissing the RICO claims under Rule 12(b)(1) or Rule 12(b)(6), the legal basis for the court’s ruling is unclear. The court’s ambiguity on this point, in turn, raises the question of whether the order should have been denominated a dismissal under Rule 12(b)(6) or Rule 12(b)(1), given that the basis for the court’s ruling was a perceived lack of RICO injury \"to business or property” sufficient to confer \"standing” to sue under section 1964(c). Generally speaking, motions to dismiss on the grounds of a failure to allege an \"injury in fact” implicate constitutional standing principles and thus are predicated on Rule 12(b)(1) rather than Rule 12(b)(6). See, e.g., Society Hill Towers Owners’ Ass’n v. Rendell, 210 F.3d 168, 175 (3d Cir.2000) (defendants challenged plaintiffs’ standing pursuant to motion to dismiss under Rule 12(b)(1)). And in view of the district court's statement that appellants' allegations failed to demonstrate an \"injury in fact,” it appears as if the court’s dismissal was pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction rather than under 12(b)(6) for failure to state a claim. While we have designated section 1964(c) as the \"standing” provision of RICO, see Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 520-21 (3d Cir.1998)," }, { "docid": "19782677", "title": "", "text": "because, in their view, they conflict with Supreme Court doctrine. II. As an initial matter, the District of Columbia urges us to convert its motion to dismiss into a motion for summary judgment because the district court considered matters outside the pleadings, namely Ord’s affidavit describing his business, the events surrounding the arrest warrant, and his concerns about future prosecution. See Fed.R.Civ.P. 12(d). But because Rule 12(d)’s conversion mechanism applies only to motions under Rule 12(b)(6) or 12(c), “the impropriety of transforming Rule 12(b)(1) motions into summary-judgment motions is well-settled.” Haase v. Sessions, 835 F.2d 902, 906 (D.C.Cir.1987) (internal quotation marks omitted). To be sure, the District of Columbia filed motions to dismiss under both Rules 12(b)(1) and 12(b)(6), but the district court ruled only on the Rule 12(b)(1) motion. We thus consider Ord’s complaint and the parties’ arguments under standards applicable to a motion to dismiss. Specifically, reviewing de novo, see, e.g., Doe v. Metro. Police Dep’t, 445 F.3d 460, 465 (D.C.Cir.2006), we “must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party,” Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). With this standard in mind, we first consider whether Ord has sufficiently alleged Article III standing. Then in Part III we consider the District of Columbia’s alternative jurisdictional argument, namely that Ord’s preenforcement and damages claims are too insubstantial to invoke federal jurisdiction. Preenforcement Challenge To establish Article III standing, “[a] plaintiff must have suffered an ‘injury in fact’' — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks and citations omitted). The plaintiffs injury must be “fairly traceable to the challenged action of the defendant,” and likely to be “redressed by a favorable decision.” Id. at 560-61, 112 S.Ct. 2130 (internal quotation marks and alterations omitted). Where a plaintiff has yet to face prosecution under a statute he" }, { "docid": "22994171", "title": "", "text": "moved for admission by reciprocity. Either way, the defendants denied her application for lack of Section 3(B) qualification. Neither plaintiff appealed her denial to the Louisiana Supreme Court pursuant to Rule 9. On May 2, 2003, the plaintiffs filed a suit against the defendants, which is parallel in all relevant respects to the LeClere action. However, their motion to consolidate their action with the LeClere suit was inexplicably denied. Cross-motions for judgment followed as in LeClere, but with different results. The Wallace district court denied the defendants’ motion to dismiss and partially denied the plaintiffs’ motion for summary judgment. Like the LeClere court, the Wallace court rejected the defendants’ jurisdictional arguments. The court dismissed the plaintiffs’ preemption claim, but denied their Due Process claim as moot. On the plaintiffs’ Equal Protection claim, however, the court applied strict scrutiny review and held that because Section 3(B) is not the least restrictive means to achieve the state’s asserted compelling interests, it is unconstitutional. Defendants timely noticed their appeal. The two cases are consolidated on appeal in this court. Because the issues raised are nearly identical, any references to plaintiffs in the following discussion include, unless otherwise noted, the LeClere and Wallace plaintiffs. STANDARD OF REVIEW We review de novo a district court’s Rule 12(b)(1) (motion to dismiss for lack of subject matter jurisdiction), Rule 12(b)(6) (motion to dismiss for failure to state a claim upon which relief can be granted), and Rule 56 (motion for summary judgment) dispositions, applying the same standards as the district court. Bombardier Aerospace v. Ferrer, Poirot & Wansbrough, 354 F.3d 348, 352 (5th Cir.2003). DISCUSSION A. Federal Jurisdiction The defendants maintain that the plaintiffs lack standing and present unripe claims. They further assert judicial and legislative immunity from the LeClere and Wallace suits pursuant to precedent and the Federal Courts Improvement Act of 1996 (“FCIA”), 42 U.S.C. § 1983. Standing and ripeness are two doctrines of justiciability that assure federal courts will only decide Article III cases or controversies. To achieve standing, a plaintiff must have suffered an injury in fact, see Elk Grove Unified Sch. Dist." }, { "docid": "790487", "title": "", "text": "The Defendants’ motions to dismiss pursuant to Federal Civil Procedure Rule 12(b)(1) must be addressed first because Defendants are contending that Plaintiff lacks standing to assert her claims, and disputes over constitutional standing for purposes of Article III, Section 2 of the United States Constitution must be addressed before proceeding to the merits of a plaintiffs claims. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Defendants contend that Plaintiff lacks standing to pursue her claims because she has not suffered an “injury in fact”. as required by the “case and controversy” requirement of Article III. Defendants argue that because Plaintiff never paid the attorneys’ fees and costs that she claims are in excess of what is permitted by law, she has not suffered an injury in fact. Without any injury, Defendants argue that all of Plaintiffs claims must be dismissed. In order to establish an injury in fact, a plaintiff must have suffered an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations omitted). Additionally, there must be a causal connection between the injury and the conduct complained of; that is, the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Id. (citations omitted). It must also be “likely,” as opposed to merely “speculative,” that the injury will be redressed by a favorable decision. Id. at 561, 112 S.Ct. 2130. (citations omitted). These general principles of standing are applicable to all of Plaintiffs claims, but her statutory claims may contain particular standing requirements. For each claim asserted by Plaintiff, it must be determined whether she has standing to assert the claim, and then, if so, whether the claim survives the Defendants’ Rule 12(b)(6) motions to dismiss. Each claim will be addressed in turn, starting with Plaintiffs FDCPA claim against" }, { "docid": "12997431", "title": "", "text": "individuals. On September 23, 2016, Defendants filed the underlying motion to dismiss in which they argue that Plaintiff has failed to allege facts sufficient to establish Article III standing because he has not alleged facts sufficient to show an actual injury-in-fact. [ECF 15]. When ruling on Defendants’ motion to dismiss, this Court must accept, as true, all relevant and pertinent factual allegations in the amended complaint and construe these facts in the light most favorable to Plaintiff. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Succinctly, the allegations are that: On.April 1, 2016, Plaintiff Joel Hen-drick purchased a drink refill using his credit card at the Stewart’s Corner, located on the University of Alabama campus in Tuscaloosa, Alabama. (Comp. ¶¶24, 40). The store was operated by Defendants. (Id. at ¶ 23). At the point of sale, Plaintiff was given a paper receipt for the transaction that contained, ten digits of his credit card number, which Plaintiff alleges violated the FACTA. (Id. at ¶¶23, 40). A copy of the paper receipt was attached to the complaint as Exhibit A. (Id.). Plaintiff alleges that this FACTA violation “exposed [him] to at least an increased risk of identity theft.... ” (Id at ¶ 44). LEGAL STANDARD As stated, Defendants move to dismiss Plaintiffs complaint pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1) on the basis that Plaintiff has failed to allege facts sufficient to establish Article III standing, and under Rule 12(b)(6) for failing to state a claim upon which relief can be granted. “A motion to dismiss for want of standing is ... properly brought pursuant to Rule 12(b)(1), because standing is a jurisdictional matter.” Constitution Party of Pa. v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014). Rule 12(b)(1) challenges may be either facial or factual challenges. Id. A facial challenge asserts that the complaint does not allege sufficient grounds to establish subject matter jurisdiction. Id. Where a Rule 12(b)(1) motion is filed prior to an answer, as is the case here, it will be considered a facial challenge to jurisdiction. Id. at 358. When considering such" }, { "docid": "4853638", "title": "", "text": "Expansion v. Mineta, 333 F.3d 193,198 (D.C.Cir.2003) (citations omitted). “At the motion to dismiss stage, counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact.” Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1106 (D.C.Cir.2005). “Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1),” the factual allegations in the complaint “will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd., 503 F.Supp.2d 163, 170 (D.D.C.2007) (internal citations and quotation marks omitted). III. DISCUSSION Plaintiffs Complaint seeks an order requiring the USCIS to reverse its previous denial of Real Technologies’ 1-140 visa petition, and Plaintiffs 1-485 application to adjust status and 1-765 applications for employment authorization. Defendants assert that the Court lacks subject matter jurisdiction over Plaintiffs claims because Plaintiff lacks standing to challenge the denial of the 1-140 petition, and any complaint regarding the denial of Plaintiffs adjustment of status and employment authorization applications cannot be remedied because the Court lacks jurisdiction. In the alternative, Defendants argue that the denial of the 1-140 petition was substantively proper, meaning the denial of Plaintiffs applications was correct as a matter of law. As explained below, the Court finds Plaintiff lacks standing to appeal the denial of the 1-140 visa petition, and consequently, also lacks standing to challenge the denial of his 1-485 and 1-765 applications. A. Standing to Appeal Denial of Real Technologies’ I-1J/.0 Visa Petition Defendants initially move to dismiss the Complaint on the basis that Plaintiff lacks standing to challenge the denial of the I-140 visa petition Real Technologies filed on his behalf. “Article III of the Constitution restricts the federal courts to deciding only actual, ongoing controversies, and a federal court has no power to render advisory opinions [or] ... decide questions that cannot affect the rights of litigants in the case before them.” Nat’l Black Police Ass’n v." }, { "docid": "19762560", "title": "", "text": "that we must analyze appellants’ standing exclusively under our pre-en-forcement precedents, Seegars and Nave-gar. We disagree on both counts. The District does not completely prohibit handgun registration. See D.C.Code § 7-2502.02(a)(4) (allowing certificates for pistols already registered in the District prior to 1976); D.C.Code § 7-2502.02(b) (excluding retired police officers of the Metropolitan Police Department from the ban on pistol registration). Had Heller been a retired police officer, presumably the District would have granted him a registration certificate. The same would be true if Heller had attempted to register a long gun, as opposed to a handgun. In any event, Heller has invoked his rights under the Second Amendment to challenge the statutory classifications used to bar his ownership of a handgun under D.C. law, and the formal process of application and denial, however routine, makes the injury to Heller’s alleged constitutional interest concrete and particular. He is not asserting that his injury is only a threatened prosecution, nor is he claiming only a general right to handgun ownership; he is asserting a right to a registration certificate, the denial of which is his distinct injury. We note that the Ninth Circuit has recently dealt with a Second Amendment claim by first extensively analyzing that provision, determining that it does not provide an individual right, and then, and only then, concluding that the plaintiff lacked standing to challenge a California statute restricting the possession, use, and transfer of assault weapons. See Silveira v. Lockyer, 312 F.3d 1052, 1066-67 & n. 18 (9th Cir.2003). We think such an approach is doctrinally quite unsound. The Supreme Court has made clear that when considering whether a plaintiff has Article III standing, a federal court must assume arguendo the merits of his or her legal claim. See Warth v. Seldin, 422 U.S. 490, 501-02, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (assuming factual allegations and legal theory of complaint for purposes of standing analysis). We have repeatedly recognized that proposition. See Waukesha v. E.P.A., 320 F.3d 228, 235 (D.C.Cir.2003); Am. Fed’n of Gov’t Employees, AFL-CIO v. Pierce, 697 F.2d 303, 305 (D.C.Cir.1982). “Indeed, in" }, { "docid": "4853659", "title": "", "text": "F.3d 593, 597-98 (7th Cir.2009) (finding I-140 beneficiary had standing to appeal denial of the petition where new employer provided affidavit that the company would employ beneficiary upon receipt of employment authorization). Second, even if Plaintiff had alleged to have suffered some redressable injury, Plaintiff would still have to show prudential standing based on his interest in porting the petition. Glickman, 92 F.3d at 1232 (“[T]he injury that supplies constitutional standing must be the same as the injury within the requisite ‘zone of interests’ for purposes of prudential standing.”). However, as explained at length above, Plaintiffs interest in obtaining employment in the United States runs counter to the Congressional purpose of the labor certification and 1-140 visa petition provisions of the INA. Supra, Section III.A.2. Therefore, even if Plaintiff could show an injury in fact for purposes of constitutional standing, Plaintiff cannot show that his interests associated with porting Real Technologies’ 1-140 petition fall within the zone of interests of the relevant provisions of the INA sufficient to confer prudential standing. IV. CONCLUSION For the foregoing reasons, the Court finds Plaintiff lacks standing to pursue his Complaint. Plaintiff has alleged a redressable injury from the denial of his employer’s 1-140 visa petition sufficient to show constitutional standing. However, Plaintiffs interests run contrary to the Congressional purposes of the labor certification process and employment preference visas, and therefore Plaintiff lacks prudential standing to challenge the denial of the 1-140 petition. Consequently, the Court lacks jurisdiction to require Defendants to reopen and approve the 1-140 petition which formed the basis for Plaintiffs 1-485 application for adjustment of status, which in turn is required for approval of Plaintiffs 1-765 applications for employment authorization. Therefore, the Court cannot redress any injury Plaintiff might allege from the denial of these applications, and Plaintiff lacks standing to challenge the denial of his 1-485 and 1-765 applications. Accordingly, Defendants’ [5] Motion to Dismiss Plaintiffs Complaint Under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) is GRANTED. Defendant’s motion to dismiss for lack of subject matter jurisdiction is GRANTED. Defendant’s motion to dismiss for failure to state a" }, { "docid": "22247765", "title": "", "text": "seeking clarification as to whether the District Court’s judgment applied to ILGO’s ■ request for a permanent injunction concerning future permit requests. The District Court refused to amend the judgment, but stated that the decision referred only to the denial of a permit to march on St. Patrick’s Day, 1995, since claims regarding future permit applications were not yet. ripe. On October 11, 1995, ILGO again applied for a permit to stage an earlier parade on St. Patrick’s Day, 1996, using substantially the same route as the AOH parade. The permit .request was denied, as was ILGO’s motion for a preliminary injunction. The District Court (Koeltl, J.) then granted the Defendants motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) on December 24, 1996, finding that ILGO’s facial challenge to the City’s permitting statute, section 10-110, was precluded by the 1995 litigation. With regard to ILGO’s as-applied challenge, the district court held that ILGO lacked standing to sue for damages and that ILGO’s requests for declaratory and permanent injunctive relief were moot. ILGO appeals that decision to this Court. II. Standard of Review We review de novo the district court’s grant of Defendants’ motion to dismiss ILGO’s claims. See Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994). The test for evaluating a 12(c) motion is the same as that applicable to a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6). We therefore must accept the allegations of ILGO’s complaint as true, and draw all reasonable inferences in ILGO’s favor. Sheppard, 18 F.3d at 150. We will not uphold the district court’s dismissal unless “it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of [his] claim which would entitle him to relief.” Id. (internal quotations omitted). This standard is “applied .with particular strictness when the plaintiff complains of a civil rights violation.” Branum v. Clark, 927 F.2d 698, 705 (2d Cir.1991) (citations omitted). III. The Facial Challenge ILGO challenges the facial constitutionality of section 10-110, arguing that the statute is overbroad and grants the police commissioner unfettered discretion to grant," }, { "docid": "14723355", "title": "", "text": "co-fiduciaries. Following consolidation, defendants moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court denied the motion. Thereafter, defendants moved to dismiss for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that neither Taylor nor Klamert sustained an “actual injury” sufficient to confer Article III standing. In response, plaintiffs’ counsel asserted that Taylor did sustain an injury, forfeiting any argument with regard to Klamert. Upon review, the district court held that Taylor did not suffer actual injury because she had “benefitted” from the alleged breaches of fiduciary duty, which allowed her to sell the majority of her KeyCorp holdings at an inflated price. Final judgment was entered on August 12, 2010. On September 10, 2010, Anthony S. Lo-basso moved to intervene as a plaintiff and class representative under Federal Rule of Civil Procedure 24. Three days later, on September 13, 2010, plaintiffs filed their notice of appeal. Based upon the district court’s entry of final judgment, Lobasso’s motion was denied. Thereafter, defendants filed a cross-appeal challenging the denial of their motion to dismiss, and Lo-basso filed an appeal of the denial of his motion to intervene. II. We review a district court’s dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) de novo. Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 324 (6th Cir.2007). In considering a Rule 12(b)(1) motion, we may look beyond the jurisdictional allegations in the complaint and consider submitted evidence. Id. at 330. The plaintiff bears the burden of establishing that jurisdiction exists. Nichols v. Muskingum Coll, 318 F.3d 674, 677 (6th Cir.2003). III. “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). And, an important element of the case-or-controversy requirement is that plaintiff have standing to sue. Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). In order to establish standing," }, { "docid": "9523976", "title": "", "text": "continuing, adverse effects sufficient to support standing because the Government denied and continues to deny him the ability to purchase a firearm; he notes we held a similar injury sufficient for standing in Parker v. District of Columbia, 478 F.3d 370, 376 (2007), aff'd sub nom. District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). More specifically, he argues the Government denied him the ability to buy a firearm by requiring, via Question 13 on Form 4473, that he reside in a state as a condition of making such a purchase. We agree with Dearth that the Government has denied him the ability to purchase a firearm and he thereby suffers an ongoing injury. Dearth’s injury is indeed like that of the plaintiff in Parker, who had standing to challenge the District of Columbia’s ban on handguns because he had been “denied a registration certificate to own a handgun.” 478 F.3d at 376. As we there stated, “a license or permit denial pursuant to a state or federal administrative scheme” that can “trench upon constitutionally protected interests” gives rise to “an Article III injury”; “the formal process of application and denial, however routine,” suffices to show a cognizable injury. Id. The Government nonetheless argues Parker does not control both because here it did not affirmatively deny Dearth’s application to purchase a firearm and because Dearth does not claim he has a right to be issued a “permit” or “license” by the Government. As to the first distinction, we hold the Government cannot so easily avoid suit when it has erected a regulatory scheme that precludes Dearth from truthfully completing the application form the Government requires for the purchase of a firearm. Like the plaintiff in Parker, Dearth twice attempted to go through the “formal process” of applying to purchase a firearm and each time failed because of the laws and regulations he now challenges. As for its second effort to distinguish Parker, the Government places undue weight upon our statement there that the plaintiff was “asserting a right to a registration certificate, the denial" }, { "docid": "21123408", "title": "", "text": "supports Article III standing, and the Court lacks jurisdiction to hear such a claim. This does not end the mattery however, for although Ms. Campbell argued that her first asserted injury “forms the basis of the transaction at issue and many of the claims raised,” PL’s Response at 3, her allegation regarding paying for an illusory policy is only one of three alleged injuries in this case. She also argues that she has standing to bring all of her claims on the grounds that Defendants .charged her premiums in excess of her contractual obligation on at least two occasions, and she asserts that she has standing to bring her CPPA claim because Defendants violated her statutory right to truthful information about consumer goods and services. PL’s Opp’n at 55-57. Defendants do not appear to challenge the adequacy of either of these alleged injuries for standing purposes, and the Court agrees with Ms, Campbell that unauthorized charges and allegedly material misrepresentations about the program constitute injuries in fact for standing purposes. See In re APA Assessment Fee Litig., 766 F.3d 39, 47 (D.C.Cir.2014) (holding that plaintiffs may recover mistaken overpayments via an unjust enrichment claim); D.C.Code § 283901(c) (“This chapter establishes an enforceable right to truthful information from merchants about consumer goods and services that are or would be purchased, leased, or received in the District of Columbia.”); see also Grayson v. AT & T Corp., 15 A.3d 219, 249-50 (D.C.2011) (“[T]he deprivation of a statutory right to be free from improper trade practices may constitute an injury-in-fact sufficient to establish standing, even though the plaintiff would have suffered ho judicially cognizable injury in the absence of the statute.” (internal quotation marks and citations omitted)). Accordingly, because Ms, Campbell’s theories of injury premised on unauthorized premium charges and violations of the CPPA are sufficient to establish standing as to each of her claims, the Court will deny Defendants’ motion to dismiss the complaint pursuant to Rule 12(b)(1). B. Motion to Dismiss Pursuant to Rule 12(b)(6) Defendants next argue that Ms. Campbell’s complaint must be dismissed in its entirety pursuant, to Rule" }, { "docid": "16033627", "title": "", "text": "pursuant to Fed.R.Civ.P. 23. On April 2, 1992, the district court issued a memorandum opinion and order granting Mrs. Smith’s motion to intervene, denying Mrs. Banks’s motion for conditional class certification, granting the federal defendant’s motion challenging subject matter jurisdiction, and granting the state defendant’s motion under Rule 12(b)(6). Banks v. Secretary of Indiana Family and Social Services Administration, 790 F.Supp. 1427, 1440-41 (N.D.Ind.1992). The plaintiffs filed a timely appeal. For the purpose of clarity, we address first the claims brought against the Secretary of Health and Human Services under the Medicaid Act and its implementing regulations. We then turn to the constitutional due process claims brought against both the Secretary and the state Medicaid agency. III. The complaint avers that the federal defendant violated regulations promulgated pursuant to the Medicaid Act, as well as the Due Process Clause of the Fifth Amendment, by failing to require Indiana Medicaid to give the plaintiffs timely notice of its denial of their providers’ claims for reimbursement as well as the opportunity for an administrative hearing in which to contest the denial. The Secretary of Health and Human Services filed a motion to dismiss based on Rules 12(b)(1) and 12(b)(6). The Rule 12(b)(1) jurisdictional defense asserted that the plaintiffs lacked Article III standing to sue the Secretary and had failed as well to invoke mandamus jurisdiction. The district court agreed and granted the motion. This court has jurisdiction over this appeal because dismissal of an action for lack of subject matter jurisdiction is a final judgement. 28 U.S.C. § 1291 (1986). We review de novo the district court’s determination on standing, Love Church v. City of Evanston, 896 F.2d 1082, 1085 (7th Cir.), cert. denied, 498 U.S. 898, 111 S.Ct. 252, 112 L.Ed.2d 210 (1990), accepting as true all material allegations of the complaint and construing the complaint in favor of the complaining party. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). See also Lujan v. National Wildlife Federation, 497 U.S. 871, 889, 110 S.Ct. 3177, 3189, 111 L.Ed.2d 695 (1990) (on a motion to dismiss," }, { "docid": "9523977", "title": "", "text": "scheme” that can “trench upon constitutionally protected interests” gives rise to “an Article III injury”; “the formal process of application and denial, however routine,” suffices to show a cognizable injury. Id. The Government nonetheless argues Parker does not control both because here it did not affirmatively deny Dearth’s application to purchase a firearm and because Dearth does not claim he has a right to be issued a “permit” or “license” by the Government. As to the first distinction, we hold the Government cannot so easily avoid suit when it has erected a regulatory scheme that precludes Dearth from truthfully completing the application form the Government requires for the purchase of a firearm. Like the plaintiff in Parker, Dearth twice attempted to go through the “formal process” of applying to purchase a firearm and each time failed because of the laws and regulations he now challenges. As for its second effort to distinguish Parker, the Government places undue weight upon our statement there that the plaintiff was “asserting a right to a registration certificate, the denial of which [was] his distinct injury.” 478 F.3d at 376. More fundamentally, as we explained, the plaintiffs there were “claiming] a right to possess ... ‘functional firearms[ ]’ ... for self-defense in the home.” Id. at 374. That is, the right to possess, not the right to a permit or license, was the substance of their claim. One of those plaintiffs had standing because, rather than alleging merely an intent to violate the District’s gun laws, he had “invoked his rights under the Second Amendment to challenge the statutory classifications used to bar his ownership of a handgun.” Id. at 376. Just so with Dearth, who raises a constitutional challenge to the regulatory and “statutory classifications” that bar him from acquiring a firearm. Id. That the regulatory regime does not provide for the Government’s issuance of a permit or license is of no moment; the challenged provisions have similarly thwarted Dearth’s best efforts to acquire a firearm. The Government also argues Dearth cannot show he suffers either the “continuing, present adverse effects,” Lujan, 504 U.S." }, { "docid": "14774136", "title": "", "text": "and the First Amendment. Doe, Roe, and Poe joined with J.B. in challenging the constitutionality of section 13A-6-65(a)(3) because they feared “its continued use and enforcement by Alabama officials against lesbians and gay men.” Brief of Appellant at 5. The Attorney General filed a motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of standing and under Rule 12(b)(6) for failure to state a claim. The district court granted the Rule 12(b)(1) part of the motion, concluding that none of the plaintiffs had alleged facts in the complaint sufficient to give them standing to challenge section 13A-6-65(a)(3). The plaintiffs then filed a motion for reconsideration, which included an alternative request for leave to amend their complaint, although the grounds for the amendment were not specified. The district court denied that motion as well. J.B., Doe, Roe, and Poe all appeal the district court’s ruling that they lacked standing to challenge section 13A-6-65(a)(3) on First Amendment grounds and its denial of their motion for reconsideration. J.B. also appeals the district court’s conclusion that she lacked standing to challenge section 13A-6-65(a)(3) on equal protection grounds. Ill We review de novo the district court’s grant of a motion to dismiss the complaint, taking as true the facts as they are alleged in the complaint. Covad Communications Co. v. BellSouth Corp., 299 F.3d 1272, 1276 n. 2 (11th Cir.2002). The three-part test we apply to determine if a plaintiff has standing to bring suit in federal court is this familiar one: First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a" } ]

[ { "docid": "18003454", "title": "", "text": "not violate Sapp’s “clearly established constitutional rights.” We see, therefore, no reason to reach a decision on the merits of Sapp’s claim. Nonetheless, Sapp contends that we should reach such a decision so that the question of attorneys’ fees may be decided. This circuit has recognized various exceptions to the American rule that attorneys’ fees are not awarded as costs of the action. However, attorneys’ fees will not be awarded against a party who has defended successfully. See Bond v. White, 508 F.2d 1397 (5th Cir. 1975); Sierra Club v. Lynn, 502 F.2d 43, 66 (5th Cir. 1974). The judgment of the district court is affirmed. . Dr. Carl G. Renfroe is the Superintendent, and the other appellees are members, of the City Board of Education. . In a review of judicial proceedings, an appellate court must affirm a correct judgment of the district court even when that decision is based on an inappropriate ground or a wrong reason. Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 82 L.Ed. 224 (1937); PAAC v. Rizzo, 502 F.2d 306, 308 n. 1 (3d Cir. 1974). . Sapp’s complaint did not contain a demand for money damages, except for such “further relief as is just and proper.” Sapp, however, in response to the Board’s motion to dismiss the appeal, has asserted in this court that he is entitled to such relief. Rule 54(c) of the Federal Rules of Civil Procedure has been construed liberally and under it the demand for relief in the pleadings does not limit, except in cases of default, the relief a court may grant when entering judgment. See Thorington v. Cash, 494 F.2d 582, 586 n. 9 (5th Cir. 1974). A party may be awarded the damages . established by the pleadings or the facts proven at trial even though only injunctive relief was demanded in the complaint, unless such damages are foisted upon the parties by the court, or unless the failure to demand such relief prejudiced the opposing party. Robinson v. Lorillard Corp., 444 F.2d 791, 802-03 (4th Cir. 1971); see J. Moore, Federal Practice" } ]

[ { "docid": "22176491", "title": "", "text": "“Motion for Relief from Stipulation for Settlement.” I note that Rule 60(b) of the Federal Rules of Civil Procedure allows the court the discretion to grant relief to a party from a final order or judgment upon “such terms as are just.” Civ.R. 60(b). I will determine the reasonableness of the amounts for attorney’s fees and costs, as well as what terms are just after further input from defendants. After further pleadings, the district court ordered that Cashner be awarded $10,000 in attorneys’ fees and costs. As Defendants’ note, the only authority relied on by the district court for awarding attorneys’ fees was Rule 60(b)’s provision that relief from a judgment may be granted “upon such terms as are just.” Because we find that the district court improperly granted Rule 60(b) relief, it follows that the award of attorneys’ fees must also fail. We therefore vacate the award of attorneys’ fees in connection with Rule 60(b). IY. For the foregoing reasons, the district court’s order of August 30, 1994 is RE VERSED. The district court’s January 17, 1995 order awarding plaintiff attorneys’ fees is VACATED. The case is REMANDED for further proceedings consistent with this opinion. . Cashner also alleged noncompliance because, the accounts had previously been turned over to Defendants’ internal collection department. However, both the magistrate and the district judge found that such action was not inconsistent with the agreement. . When a party asserts an excusable failure to comply with procedural requirements, we have often imposed an additional requirement for Rule 60(b)(1) relief that the party demonstrate that his or her claim is \"meritorious.” Otoe County Nat’l Bank v.W & P Trucking, 754 F.2d at 883 (10th Cir.1985) (quoting Cessna, 715 F.2d at 1445). We need not address that issue here because Melley has failed to meet the threshold requirements for Rule 60(b)(1) relief. . The district court found only unilateral mistake by Melley. Of course, Melley’s mistake as to the interpretation on the contract could not even satisfy New Mexico’s contract doctrine of allowing rescission upon unilateral mistake unless Melley could show that Cashner knew or" }, { "docid": "7582188", "title": "", "text": "court. The contract between Teleprompter and the Engel group was in evidence, and the court’s attention had been specifically directed to the attorneys’ fees clause by the plaintiffs’ application for a fee award. The interpretation of this clause and its enforceability under Texas law were not in issue. Only the identity of the prevailing party had to be established before that party’s right to this form of relief became manifest. Significantly, the district court had held open the attorneys’ fees issue while the case was considered by this court. We find no prejudice to the plaintiffs, and consequently conclude that entertaining the fee application is mandated by Rule 54(c). In a case such as this one, the district court might proceed alternatively under Fed.R.Civ.P. 15, treating the prevailing party’s application for relief as a motion to amend the pleadings. Leave to amend may be denied if a likelihood of prejudice or some other procedural abuse is shown. Here, the absence of prejudice is manifest, and the district court would have abused its discretion if it refused Teleprompter leave to amend its pleadings to seek an award of attorneys’ fees. Consequently, it matters not here whether the court proceeds under Rule 54(c) or Rule 15; in either event the district court should have entertained an application for fees by defendant Teleprompter. The prevailing party, of course, must make a proper application for an award of fees. Here, the defendants properly informed the district court that they planned to seek an award of fees, and they submitted their application and most of the supporting documentation before the district court officially entered its judgment; one affidavit was filed after judgment was entered but within the period for consideration of Teleprompter’s motion to amend judgment. Plaintiffs' argument that Teleprompter’s prayer for attorneys’ fees should have been submitted to this court so that it could have been considered along with the merits of the original appeal misses the mark. With respect to attorneys’ fees, there was no issue for us to consider, no controversy aired before the district court requiring appellate review. All parties agreed" }, { "docid": "11585716", "title": "", "text": "court denying attorneys’ fees is AFFIRMED. . The district court also rejected Simon-Hart-ley's counterclaim for rescission of the license agreement. . United sought $490,641.75 in attorneys’ fees to be taxed as costs. . \"When, items of special damage are claimed, they shall be specifically stated.” Fed.R.Civ.P. 9(g). .In Engel, plaintiffs-shareholders sued Teleprompter Coip. for breach of a subscription agreement and for attorneys' fees under a contract provision entitling a prevailing party to fees. 732 F.2d at 1240. The non-jury trial resulted in judgment for the plaintiffs. On appeal, we reversed and remanded with instructions to dismiss the complaint. On remand, the now-prevailing party, Teleprompter, moved for fees as provided in the contract. The district court denied the request. On subsequent appeal we reversed. Our reversal, however, was specifically grounded in both the procedural posture of the case and the factual background of the litigation. Procedurally, we noted that because Teleprompter was not the prevailing party in the first suit, it could not have been required to request fees at that time. Consequently, Teleprompter's failure to plead for fees as an initial defendant was not fatal to the later request following remand. Id. at 1240-41. Additionally, we noted that the plaintiffs and Teleprompter had an explicit contract provision that the prevailing party would be entitled to fees in the event of litigation. Id. at 1240. The validity and interpretation of the provision was never in dispute. Moreover, following remand to the district court. Teleprompter made a timely application for attorneys’ fees and submitted supporting materials before the district court officially entered its final judgment. Id. at 1242. None of these characteristics are present in the case now before us. . While we do not address the merits of United’s claim for fees under the choice-of-law provision in the license agreement, we note our skepticism that such a clause targeting interpretation of the contract terms also incorporates English fee-shifting. . While the district court did not explicitly ground its denial of attorneys' fees on Rule 54(d), it is well-settled that this Court will not reverse a judgment of the district court if" }, { "docid": "7582189", "title": "", "text": "refused Teleprompter leave to amend its pleadings to seek an award of attorneys’ fees. Consequently, it matters not here whether the court proceeds under Rule 54(c) or Rule 15; in either event the district court should have entertained an application for fees by defendant Teleprompter. The prevailing party, of course, must make a proper application for an award of fees. Here, the defendants properly informed the district court that they planned to seek an award of fees, and they submitted their application and most of the supporting documentation before the district court officially entered its judgment; one affidavit was filed after judgment was entered but within the period for consideration of Teleprompter’s motion to amend judgment. Plaintiffs' argument that Teleprompter’s prayer for attorneys’ fees should have been submitted to this court so that it could have been considered along with the merits of the original appeal misses the mark. With respect to attorneys’ fees, there was no issue for us to consider, no controversy aired before the district court requiring appellate review. All parties agreed that the prevailing party could recover his attorneys’ fees, and our disposition of the appeal answered the sole relevant question — namely, which party had prevailed. Plaintiffs suggest half-heartedly that the district judge may simply have exercised his discretion not to award fees. The record plainly indicates, however, that the district court was led by plaintiffs’ arguments to conclude that an award of fees was not authorized when we issued our mandate instructing only that the complaint be dismissed. In any event, the refusal, as a matter of discretion, to award fees where they are authorized must be supported with adequate reasons. It follows that the district court should have granted Teleprompter’s motion to amend judgment and awarded the attorneys’ fees deemed justified. Accordingly, we reverse the denial of this motion, and remand the case with instructions to the district court to make an appropriate award of attorneys’ fees to the prevailing parties. We decline Teleprompter’s invitation to de termine ourselves the appropriate amount of this award. REVERSED and REMANDED. . The defendants also sought" }, { "docid": "7582183", "title": "", "text": "to the issuance of our mandate. While defendants could not have been expected to seek or prove their attorneys’ fees when the case was originally pending before the district court because they were not then the prevailing parties, in pursuing an appeal to this court defendants could have requested a reversal of the judgment and a remand for the purpose of awarding attorneys’ fees and costs. They did not explicitly request such a remand. Nevertheless, a reversal such as that entered in this case automatically operates as a form of remand because the case is returned to the district court for entry of judgment. At that point, the district court is not limited to taking only those actions explicitly directed in our judgment and no others. Rather, the district court is obliged to carry out the instructions we have given, and should then be presumed to be free to take any other consistent actions. The district court is not preempted from acting on a matter neither raised before nor acted upon by this court. See Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1938); cf., Texaco, Inc. v. Federal Power Commission, 337 F.2d 253 (10th Cir.1964) (Court of Appeals, instructed by Supreme Court to dismiss party’s petition, could not take alternative, inconsistent course of transferring action). Awarding attorneys’ fees to the defendant is not inconsistent with our instruction to enter judgment for the defendant; to the contrary, the two actions are consistent. Where a statute or contractual provision authorizes a fee award, such an award becomes the rule rather than the exception, and should be awarded routinely as are costs of suit. We stress that no one disputes that the present contract authorizes a fee award under these circumstances. Our inquiry is governed by Fed.R.Civ.P. 54(e), which provides that “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” This rule has been cited in the past to justify an award of attorneys’" }, { "docid": "7582186", "title": "", "text": "establish his right to some affirmative relief without asserting a counterclaim, but when that situation arises, the liberalizing intent underlying Rule 54(c) counsels that the appropriate relief should not ordinarily be denied. We doubt that Rule 54(c) will apply frequently to a prevailing defendant who attempts to state no counterclaim because his concentration is upon denying the allegations of the complaint and advancing affirmative defenses, and it is unlikely that some right to affirmative relief will appear as a result of that process. Thus, the defendant is not in the position of one who has claimed an inappropriate form of relief, because he is not seeking relief at all, as that term is traditionally used. Professor Moore anticipated this nuance when he declared that “[t]he provisions of Rule 54(c) ... apply not only to claimants for relief but to defending parties as well.” J. Moore, supra, ¶ 54.62, at 1271 (emphasis added). See Metropolitan Casualty Ins. Co. of N.Y. v. Friedley, 79 F.Supp. 978, 982 (N.D.Iowa 1948) (defendant in declaratory judgment action to settle rights under insurance policy was granted reformation of the policy though defendant had not sought any affirmative relief). Reading Rule 54(c) in a manner congruent with the rules of civil procedure, as we must, with their focus upon stated claims and counterclaims, we find that the rule is not open-ended but enjoys only a limited, if important, role. First, entry of a judgment in favor of a defendant will not itself often establish a right to relief, apart from counsel fees and costs. Second, a party’s failure to seek a form of permissible relief in his pleadings may operate to the prejudice of the opposing party when that relief is finally sought at a much later stage of the proceedings. Denial of relief i,- then also appropriate. International Harvester Credit Corp. v. East Coast Truck, 547 F.2d 888, 891 (5th Cir.1977); Sapp v. Renfroe, 511 F.2d 172, 176 n. 3 (5th Cir.1975). Here, Teleprompter did not seek attorneys’ fees in its pleadings. Nevertheless, all of the elements justifying such relief were fully established before the district" }, { "docid": "961405", "title": "", "text": "amended. However, this prejudice is not the type sought to be prevented by Rule 15’s restrictions. Cunningham v. Quaker Oats Co., 107 F.R.D. 66, 71 (W.D.N.Y.1985). In addition Fed.R.Civ.P. 54(c) supports a finding that plaintiff is not barred from seeking a fee award in this case for failure to formally plead a claim under the MMA. Under Rule 54(c), it is not necessary that plaintiff set forth the legal theory on which he relies if he sets forth sufficient factual allegations to state a claim showing that he is entitled to any relief which the court may grant. Rohler v. TRW, Inc., 576 F.2d 1260, 1264 (7th Cir.1978). See Engel v. Teleprompter Corp., 732 F.2d 1238 (5th Cir.1984) (Failure to seek attorney’s fees in its pleadings did not bar “prevailing party” from seeking a fee award under a contract). Because we find no undue prejudice to Defendant Peugeot, we find that Plaintiff’s failure to plead the MMA claim in his complaint does not bar his present petition for attorney’s fees under that Act. Jurisdiction Defendant contends that Plaintiff’s failure to satisfy the jurisdictional parameters of the MMA precludes a fee award under that Act. An MMA action may be brought in state or federal court. 15 U.S.C. § 2310(d)(1)(A)-(B). However, federal jurisdiction is restricted by § 2310(d)(3) which provides that no claim can be brought in a United States district court: (A) if the amount in controversy of any individual claim is less than the sum or value of $25; (B) if the amount in controversy is less than the sum or value of $50,000 (exclusive of interests and costs) computed on the basis of all claims to be determined in this suit; or (C) if the action is brought as a class action, and the number of named plaintiffs is less than one hundred. 15 U.S.C. § 2310(d)(3). Plaintiff admits that his claim was for an amount less than $50,000, but contends that the $50,000 jurisdictional amount applies only to actions relying on the MMA for federal jurisdiction. He argues that this court has pendent jurisdiction over his MMA" }, { "docid": "168376", "title": "", "text": "actually tried by consent, in any event. See Stone v. First Wyoming Bank N.A., Lusk, 625 F.2d 332, 348 (10th Cir.). Except where judgment is by default, “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” (emphasis added) Fed.R.Civ.P. 54(c). And it is established that the complaint need not name the employees for whom § 17 relief is sought. Hodgson v. Virginia Baptist Hospital, Inc., 482 F.2d 821, 822, 824 & n.10 (4th Cir.). Thus the Secretary’s failure specifically to request relief relating to these six employees does not preclude such relief, even though the Secretary did request particular relief relating to other named employees. See Stroud v. B-W Acceptance Corp., 372 F.2d 185, 189 (10th Cir.) (attorneys’ fees properly awarded even though not demanded); International Harvester Credit Corp. v. East Coast Truck & R. V. Sales, Inc., 547 F.2d 888, 891 (5th Cir.) (rescission may be granted even though not demanded, unless failure to demand the relief was prejudicial). Ill We find no merit in the defendants’ argument that § 16(c) and § 17 of the FLSA, 29 U.S.C. §§ 216(c) and 217, are mutually exclusive remedies between which the Secretary must elect. See generally Hodgson v. Wheaton Glass Co., 446 F.2d 527, 529-33 (3d Cir.) (discussing the history of the different remedies for violation of the FLSA). The cases which defendants cite do not support their argument. Shultz v. Mistletoe Express Service, Inc., 434 F.2d 1267, 1272 (10th Cir.), held that in an action under § 217 to restrain continued withholding of unpaid minimum wages and overtime compensation, a good-faith defense based on a belief of lack of coverage is no bar to an injunction to prevent enrichment of the employer by retention of amounts it should have paid. No election problem was involved. Wirtz v. Marino, 405 F.2d 938 (1st Cir.), was brought solely under § 216(c); the court construed the term “settled” in the novel question proviso then applicable to suits under § 216(c)." }, { "docid": "11585712", "title": "", "text": "this general rule, such as when the issue is tried by consent or included in a pretrial order. See Crosby, 978 F.2d at 211 n. 1; see also Seybold v. Francis P. Dean, Inc., 628 F.Supp. 912, 914-15 (W.D.Pa.1986). Likewise, we have held that under certain circumstances not present here that Rule 54(e) allows the district court to consider the fees issue even in the absence of a specific pleading. See Engel, 732 F.2d at 1240-41. As a general rule, however, we find nothing inappropriate with requiring a party to put its adversaries on notice that attorneys’ fees are at issue in a timely fashion or waive that claim. This is accomplished by specifically pleading for attorneys’ fees in the complaint. It is undisputed that United did not specially plead attorneys’ fees under Rule 9(g). United argues, however, that its request for “costs” should be deemed sufficient because, under English law, attorneys’ fees are awarded to the prevailing party as costs. We reject this semantic word game. If, as United argues, its right to attorneys’ fees is a substantive issue that requires application of English fee-shifting law, then United was obligated to specifically plead for them under the procedural rules that govern our courts. Having voluntarily sued in this forum, United has an obligation to put the parties and the court on notice that attorneys’ fees are at issue. A claim for attorneys’ fees, premised on an interpretation of a contract provision incorporating an English choice-of-law clause, cannot be buried in a general request for costs and then later resurrected a year after entry of final judgement. Given the circumstances presented in this case, the district court did not abuse its discretion in denying an award of fees that were not timely requested. Moreover, an additional reason supports the district court’s judgment. United failed to comply with Federal Rule of Civil Procedure 54(d)(2). Rule 54(d) was amended with the express purpose of harmonizing and clarifying the procedural requirements for attorneys’ fees requests. Fed.R.Civ.P. 54 advisory committee’s note (subdivision (d)); 10 Charles A. Wright, Arthur R. Miller & Mary Kay Kane," }, { "docid": "168375", "title": "", "text": "ordering such payment. (Brief of Quik-Trip Corporation, et a 1. at 4-5). The Secretary in reply argues that § 16(c) and § 17 of the FLSA are not mutually exclusive (Reply Brief for the Secretary of Labor at 2-5); and that its prayer for relief was sufficient in light of Fed.R.Civ.P. 54(c) (Reply Brief for the Secretary of Labor at 5-7). II We turn first to the defendants’ argument that the Secretary is impermissibly seeking relief not sought below. It is true that the Secretary did not specifically request the district court to grant relief regarding the six employees’ back wages, outlined in footnote 4, supra. (But see I Supp. R. 9, 11, 12, 18). Nevertheless, both the complaint and the pre-trial order clearly alleged the knowing filing of materially false reports of retroactive payment of overtime compensation. (I R. 4, 12, 13, 14). As noted, the district court admitted substantial amounts of testimony and several exhibits relating to the receipts concerning these six employees and the circumstances surrounding their preparation. Thus the issue was actually tried by consent, in any event. See Stone v. First Wyoming Bank N.A., Lusk, 625 F.2d 332, 348 (10th Cir.). Except where judgment is by default, “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” (emphasis added) Fed.R.Civ.P. 54(c). And it is established that the complaint need not name the employees for whom § 17 relief is sought. Hodgson v. Virginia Baptist Hospital, Inc., 482 F.2d 821, 822, 824 & n.10 (4th Cir.). Thus the Secretary’s failure specifically to request relief relating to these six employees does not preclude such relief, even though the Secretary did request particular relief relating to other named employees. See Stroud v. B-W Acceptance Corp., 372 F.2d 185, 189 (10th Cir.) (attorneys’ fees properly awarded even though not demanded); International Harvester Credit Corp. v. East Coast Truck & R. V. Sales, Inc., 547 F.2d 888, 891 (5th Cir.) (rescission may be granted even though not demanded, unless" }, { "docid": "16225230", "title": "", "text": "a jury trial he waived that right when he purposefully chose not to answer the suit and timely request such a trial. Finally, Dierschke complains of the award of attorney’s fees. The complaint did not request such relief. As an initial matter we note that there is no general authority for the award of attorney’s fees in bankruptcy litigation. In Cates v. Sears Roebuck & Co., we recently held that federal rules usually govern the procedure employed in the taxation of fees in federal proceedings. This rule has particular application in bankruptcy proceedings which are uniquely federal. We look, then, to the federal rules. They do not support Dierschke’s contention. It is true, of course, that Rule 8(a) requires a specification of the relief requested by the plaintiff and that Rule 54(c), and for that matter fundamental fairness, dictate that a judgment by default operates as a deemed admission only as to the relief requested in the complaint. But the attorney’s fees objected to were not awarded by virtue of the entry of a default judgment alone. A default was entered on the issue of liability, but before judgment was entered for the attorney’s fees Dierschke had notice, appeared, and opposed that award. Rule 54(d) provides authority for the judgment rendered herein; it provides that “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleading.” The plaintiffs were entitled to the attorney’s fees awarded by the court. For these reasons, the judgment of the district is, in all respects, AFFIRMED. . Ordinarily we would question a creditor’s ability to pursue relief from a fraudulent transfer pursuant to 11 U.S.C. § 544 sua sponte, see In re Mortgage America Corp., 714 F.2d 1266, 1275-76 (5th Cir.1983) (noting creditor’s lack of standing); however, because the record indicates that the bankruptcy court authorized the creditor’s exercise of the trustee’s right to reach fraudulent transfers we need not address the standing issue. See In re Natchez Corp. of W. Va., 953 F.2d" }, { "docid": "961404", "title": "", "text": "his damages attorney’s fees in connection with his breach of warranty claims. Again during a pretrial conference on July 10, 1985, six months before trial, Plaintiff’s counsel stated his position that Plaintiff is entitled to attorney’s fees under the MMA. At the Court’s direction, the parties briefed this issue prior to trial. Thus, it is clear that Defendant Peugeot was not prejudiced by lack of notice of this claim. Furthermore, Defendant was not prejudiced by an inability to present additional evidence on this claim. Plaintiff’s MMA claim relates to the same conduct alleged in the Complaint. Plaintiff premised his claim under the Act upon the same breach of warranty theories alleged in his Complaint. The Act creates a Federal private cause of action for breach of a written or implied warranty obligations similar to those provided under New Jersey law. 15 U.S.C. § 2310. The additional MMA claim would not alter Defendant’s defense. Defendant may be prejudiced in the sense that he could be liable for attorney’s fees if the Complaint is deemed to be amended. However, this prejudice is not the type sought to be prevented by Rule 15’s restrictions. Cunningham v. Quaker Oats Co., 107 F.R.D. 66, 71 (W.D.N.Y.1985). In addition Fed.R.Civ.P. 54(c) supports a finding that plaintiff is not barred from seeking a fee award in this case for failure to formally plead a claim under the MMA. Under Rule 54(c), it is not necessary that plaintiff set forth the legal theory on which he relies if he sets forth sufficient factual allegations to state a claim showing that he is entitled to any relief which the court may grant. Rohler v. TRW, Inc., 576 F.2d 1260, 1264 (7th Cir.1978). See Engel v. Teleprompter Corp., 732 F.2d 1238 (5th Cir.1984) (Failure to seek attorney’s fees in its pleadings did not bar “prevailing party” from seeking a fee award under a contract). Because we find no undue prejudice to Defendant Peugeot, we find that Plaintiff’s failure to plead the MMA claim in his complaint does not bar his present petition for attorney’s fees under that Act. Jurisdiction Defendant" }, { "docid": "11585715", "title": "", "text": "laudable purposes that are underscored by United’s failure to comply in this case. The Rule assures that the opposing party has notice of the claim. Fed.R.Civ.P. 54 advisory committee’s note (subdivision (d)). Additionally, prompt filing may allow the district court to make its fee ruling in time to allow appellate review at the same time as review on the merits. Id. It is undisputed that United did not file a motion for attorneys’ fees within fourteen days of entry of judgment as required by Rule 54(d). This failure to file within the allotted period serves as a waiver of its claim for attorneys’ fees. CONCLUSION Under the procedural rules that govern our courts, attorneys’ fees must be specifically requested in a timely fashion. This is accomplished by including a request for attorneys’ fees in the pleadings and by timely filing a Rule 54(d) motion following entry of judgment, unless excepted from the motion requirement because fees were proved as damages at trial. United failed to comply with these procedural requirements. The judgment of the district court denying attorneys’ fees is AFFIRMED. . The district court also rejected Simon-Hart-ley's counterclaim for rescission of the license agreement. . United sought $490,641.75 in attorneys’ fees to be taxed as costs. . \"When, items of special damage are claimed, they shall be specifically stated.” Fed.R.Civ.P. 9(g). .In Engel, plaintiffs-shareholders sued Teleprompter Coip. for breach of a subscription agreement and for attorneys' fees under a contract provision entitling a prevailing party to fees. 732 F.2d at 1240. The non-jury trial resulted in judgment for the plaintiffs. On appeal, we reversed and remanded with instructions to dismiss the complaint. On remand, the now-prevailing party, Teleprompter, moved for fees as provided in the contract. The district court denied the request. On subsequent appeal we reversed. Our reversal, however, was specifically grounded in both the procedural posture of the case and the factual background of the litigation. Procedurally, we noted that because Teleprompter was not the prevailing party in the first suit, it could not have been required to request fees at that time. Consequently, Teleprompter's failure to" }, { "docid": "11585717", "title": "", "text": "plead for fees as an initial defendant was not fatal to the later request following remand. Id. at 1240-41. Additionally, we noted that the plaintiffs and Teleprompter had an explicit contract provision that the prevailing party would be entitled to fees in the event of litigation. Id. at 1240. The validity and interpretation of the provision was never in dispute. Moreover, following remand to the district court. Teleprompter made a timely application for attorneys’ fees and submitted supporting materials before the district court officially entered its final judgment. Id. at 1242. None of these characteristics are present in the case now before us. . While we do not address the merits of United’s claim for fees under the choice-of-law provision in the license agreement, we note our skepticism that such a clause targeting interpretation of the contract terms also incorporates English fee-shifting. . While the district court did not explicitly ground its denial of attorneys' fees on Rule 54(d), it is well-settled that this Court will not reverse a judgment of the district court if it can be affirmed on any grounds, regardless of whether the grounds were articulated by the district • court. See Bickford v. International Speedway Corp., 654 F.2d 1028, 1031 (5th Cir.1981). Additionally, the district court’s concern over United’s belated request for attorneys’ fees is consistent with the procedural objectives embodied in Rule 54(d). . This motion requirement is waived if the substantive law governing the action provides for recovery of such fees as an element of damages to be proved at trial. Fed.R.Civ.P. 54(d)(2)(A). Attorneys fees that are recoverable as an element of damages, such as when sought under the terms of a contract, must be claimed in a pleading. Fed.R.Civ.P. 54 advisory committee's note (subdivision (d); paragraph 2). . United contends that amended Rule 54(d) should not apply in this case because it was tried and initially decided by the district court in 1992. This argument, however, ignores the subsequent opinion and judgment which were entered in 1994. Amended Rule 54(d) applies to all civil actions commenced after December 1, 1993, and \"insofar as" }, { "docid": "7582180", "title": "", "text": "PATRICK E. HIGGINBOTHAM, Circuit Judge: We must decide whether defendants who appealed successfully from an adverse judgment may recover attorneys’ fees from the ultimately unsuccessful plaintiffs, de spite defendants’ failure to seek attorneys’ fees in their pleadings before the district court and this court. We hold that a mandate of this court instructing the district court to dismiss the complaint did not divest the district court of authority to consider an award of attorneys’ fees to the prevailing defendants. I Minority shareholders in El Paso Cablevision, Inc. alleged in a lawsuit that the proposed purchase of the outstanding stock of Teleprompter Corporation by a third party would violate a subscription agreement between the plaintiffs and a Teleprompter subsidiary. In addition to injunctive relief, plaintiffs sought an award of attorneys’ fees, as expressly provided for in their contract with Teleprompter. Defendant Teleprompter answered, urging that plaintiffs be denied any relief, but failing expressly to request an award of attorneys’ fees in the event that it prevailed. A non-jury trial resulted in judgment for the plaintiffs. The trial judge granted relief to the plaintiffs, and retained jurisdiction over the case for the purpose of awarding costs and attorneys’ fees. Defendants appealed and we reversed, remanding the case to the district court with instructions to dismiss the complaint. Engel v. Teleprompter Corp., 703 F.2d 127 (5th Cir.1983). Our mandate issued on June 3, 1983. Defendants notified the district court that as the prevailing parties they planned to seek an award of attorneys’ fees, and filed an application for fees on July 21, 1983; supporting documentation and affidavits were filed between that date and August 10. On August 4, the district judge entered a judgment dismissing the suit without mention of attorneys’ fees. Defendants’ motion to amend the judgment to include an award of fees was denied, and defendants appeal. II We begin by noting the issues not raised in this case. First, defendants are not seeking to undermine the traditional “American rule” that each litigant bears the cost of his own attorney. Exceptions to this rule have always been recognized where a fee" }, { "docid": "7582187", "title": "", "text": "under insurance policy was granted reformation of the policy though defendant had not sought any affirmative relief). Reading Rule 54(c) in a manner congruent with the rules of civil procedure, as we must, with their focus upon stated claims and counterclaims, we find that the rule is not open-ended but enjoys only a limited, if important, role. First, entry of a judgment in favor of a defendant will not itself often establish a right to relief, apart from counsel fees and costs. Second, a party’s failure to seek a form of permissible relief in his pleadings may operate to the prejudice of the opposing party when that relief is finally sought at a much later stage of the proceedings. Denial of relief i,- then also appropriate. International Harvester Credit Corp. v. East Coast Truck, 547 F.2d 888, 891 (5th Cir.1977); Sapp v. Renfroe, 511 F.2d 172, 176 n. 3 (5th Cir.1975). Here, Teleprompter did not seek attorneys’ fees in its pleadings. Nevertheless, all of the elements justifying such relief were fully established before the district court. The contract between Teleprompter and the Engel group was in evidence, and the court’s attention had been specifically directed to the attorneys’ fees clause by the plaintiffs’ application for a fee award. The interpretation of this clause and its enforceability under Texas law were not in issue. Only the identity of the prevailing party had to be established before that party’s right to this form of relief became manifest. Significantly, the district court had held open the attorneys’ fees issue while the case was considered by this court. We find no prejudice to the plaintiffs, and consequently conclude that entertaining the fee application is mandated by Rule 54(c). In a case such as this one, the district court might proceed alternatively under Fed.R.Civ.P. 15, treating the prevailing party’s application for relief as a motion to amend the pleadings. Leave to amend may be denied if a likelihood of prejudice or some other procedural abuse is shown. Here, the absence of prejudice is manifest, and the district court would have abused its discretion if it" }, { "docid": "8394033", "title": "", "text": "option to the Plaintiff’ than any amount Defendant offered in settlement (Combs Aff. ¶ 3), but there is no indication that anything other than monetary “value” was contemplated or pursued. In comparison to the varied relief initially sought and the large amount pursued in this case, Plaintiffs recovery of $1 in nominal damages is quite limited. The second and third factors also show that this is a usual nominal-damages case. The case was not legally significant and is a typical civil rights action in which Plaintiff was seeking to vindicate her personal rights. See also Pino v. Locascio, 101 F.3d 235, 239 (2d Cir.1996) (“The vast majority of civil rights litigation does not result in ground-breaking conclusions of law, and therefore, will only be appropriate candidates for fee awards if a plaintiff recovers some significant measure of damages or other meaningful relief.”). Further, Plaintiffs failure to recover compensatory damages here was not due solely to an inability to meet her burden of proof. Rather, she represented during discovery that she was not seeking such damages, thereby foreclosing herself from making any such proof at trial. In addition to the typicality of this case, Plaintiffs own actions in limiting her potential recovery, in particular, warrant a finding that the only reasonable fee award here is no fee at all. 2. Costs The standard for an award of other costs to a prevailing party is different than that for an award of attorneys’ fees. Whereas the fee-shifting provision under Title VII, discussed above, places the award of attorneys’ fees in the court’s discretion, Federal Rule of Civil Procedure 54(d)(1) provides that “costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs.” Fed.R.Civ.P. 54(d)(1) (emphasis added). This provision creates a presumption in favor of awarding costs to the prevailing party. Cherry v. Champion Int’l Corp., 186 F.3d 442, 446 (4th Cir.1999). A court may only deny costs to a prevailing party “when there would be an element of injustice in a presumptive cost award.” Id. Specific factors that would justify denial of costs" }, { "docid": "18690500", "title": "", "text": "decision on a reasonable amount of attorneys’ fees. Unlike the client in Simler v. Conner, no party here claimed that the contract directed the amount of attorneys’ fees to be awarded by specifying a percentage of an ascertainable sum. Therefore, the district court, in its equitable role, should have determined a reasonable fee. Moreover, the Supreme Court has held that a judgment is “final” even though the court has yet' to determine attorneys’ fees, and even if those fees are sought pursuant to a contract. Budinich v. Becton Dickinson and Co., 486 U.S. 196, 202-03, 108 S.Ct. 1717, 1722, 100 L.Ed.2d 178 (1988); see also First Nationwide Bank v. Summer House Joint Venture, 902 F.2d 1197, 1199 (5th Cir.1990). Therefore, Budinich supports the proposition that the amount of attorneys’ fees, even when awarded under a contract, is a post-judgment matter collateral to a decision on the merits. Accordingly, although a jury may determine the amount of attorneys’ fees owed pursuant to a contract—in fact, parties may agree explicitly that the amount of attorneys’ fees is an issue to be decided by a jury—there is no absolute right to have a jury determine the amount. The utility of the above rule is illustrated by this appeal. First, the result of applying it here is fair. All the elements justifying an award of attorneys’ fees were before the district court here. The parties do not dispute that the indemnification clause in the merger agreement, which the parties arrived at through arm’s-length bargaining, gave defendants the right to collect reasonable attorneys’ fees. Compare Engel v. Teleprompter Corp., 732 F.2d at 1240. The merger agreement and the indemnification clause were in evidence, the district court instructed the jury on the award of attorneys’ fees, and the jury found that defendants should receive attorneys’ fees. It would be unfair to deny that award merely because defendants had decided, based on common practice and with no reason to do otherwise, to wait until after a verdict to submit proof of the amount of attorneys’ fees. Second, the rule is efficient. District judges routinely compute the amount" }, { "docid": "7582182", "title": "", "text": "award is authorized either by statute or by private contract, and the contract between plaintiffs and Teleprompter explicitly provided that the prevailing party in any action brought to enforce that contract would be entitled to recover his attorneys’ fees. The validity or interpretation of this contract provision has never been in dispute before either the district court or this court. Second, the finer points of pre-trial pleading are not here at issue. Plaintiffs have conceded that Teleprompter’s failure to plead for attorneys’ fees in its original answer to plaintiffs’ complaint does not bar Teleprompter from seeking an award of fees upon attaining prevailing party status. This concession is in accord with our traditional policy of not limiting the relief that may be awarded to that which is specifically sought in the pleadings. See Equity Capital Co. v. Sponder, 414 F.2d 317, 319 n. 1 (5th Cir.1969). III Apparently, plaintiffs’ argument is that Teleprompter waived its right to a fee award by failing to raise this issue before either the district court or this court prior to the issuance of our mandate. While defendants could not have been expected to seek or prove their attorneys’ fees when the case was originally pending before the district court because they were not then the prevailing parties, in pursuing an appeal to this court defendants could have requested a reversal of the judgment and a remand for the purpose of awarding attorneys’ fees and costs. They did not explicitly request such a remand. Nevertheless, a reversal such as that entered in this case automatically operates as a form of remand because the case is returned to the district court for entry of judgment. At that point, the district court is not limited to taking only those actions explicitly directed in our judgment and no others. Rather, the district court is obliged to carry out the instructions we have given, and should then be presumed to be free to take any other consistent actions. The district court is not preempted from acting on a matter neither raised before nor acted upon by this court. See" }, { "docid": "7582181", "title": "", "text": "trial judge granted relief to the plaintiffs, and retained jurisdiction over the case for the purpose of awarding costs and attorneys’ fees. Defendants appealed and we reversed, remanding the case to the district court with instructions to dismiss the complaint. Engel v. Teleprompter Corp., 703 F.2d 127 (5th Cir.1983). Our mandate issued on June 3, 1983. Defendants notified the district court that as the prevailing parties they planned to seek an award of attorneys’ fees, and filed an application for fees on July 21, 1983; supporting documentation and affidavits were filed between that date and August 10. On August 4, the district judge entered a judgment dismissing the suit without mention of attorneys’ fees. Defendants’ motion to amend the judgment to include an award of fees was denied, and defendants appeal. II We begin by noting the issues not raised in this case. First, defendants are not seeking to undermine the traditional “American rule” that each litigant bears the cost of his own attorney. Exceptions to this rule have always been recognized where a fee award is authorized either by statute or by private contract, and the contract between plaintiffs and Teleprompter explicitly provided that the prevailing party in any action brought to enforce that contract would be entitled to recover his attorneys’ fees. The validity or interpretation of this contract provision has never been in dispute before either the district court or this court. Second, the finer points of pre-trial pleading are not here at issue. Plaintiffs have conceded that Teleprompter’s failure to plead for attorneys’ fees in its original answer to plaintiffs’ complaint does not bar Teleprompter from seeking an award of fees upon attaining prevailing party status. This concession is in accord with our traditional policy of not limiting the relief that may be awarded to that which is specifically sought in the pleadings. See Equity Capital Co. v. Sponder, 414 F.2d 317, 319 n. 1 (5th Cir.1969). III Apparently, plaintiffs’ argument is that Teleprompter waived its right to a fee award by failing to raise this issue before either the district court or this court prior" } ]

[ { "docid": "22055456", "title": "", "text": "jury was empaneled and sworn, the government announced that it would proceed only on Count Two and moved to dismiss the conspiracy count. The district court denied Resio’s motion for a judgment of acquittal at the close of the government’s ease. The defense rested without presenting any evidence. On October 19, 1993, the jury found Resio guilty of Count Two. On December 30,1993, the district court sentenced Resio to sixty-six months of imprisonment and four years of supervised release and imposed a $500 fine and a $50 mandatory special assessment. Resio filed a timely notice of appeal. Discussion Resio’s first point of error is that the government failed to introduce sufficient evidence to support his conviction for possession with intent to distribute approximately 326.4 pounds of marihuana in violation of 21 U.S.C..§ 841(a)(1) and (b)(1)(B). In reviewing challenges to the sufficiency of the evidence, we review the evidence, whether direct or circumstantial, in the light most favorable to the jury verdict. United States v. Nguyen, 28 F.3d 477, 480 (5th Cir.1994). All credibility determinations and reasonable inferences are to be resolved in favor of the verdict. Id. We hold the evidence sufficient if we conclude that a rational trier of fact could have found therefrom the essential elements of the crime beyond a reasonable doubt. United States v. Villasenor, 894 F.2d 1422, 1425 (5th Cir.1990). In making such a determination, “[i]t is not necessary that the evidence exclude every reasonable hypothesis of .innocence or be wholly inconsistent with every conclusion except that of guilt.” United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). In order to obtain a conviction for possession with intent to distribute marihuana, the government must prove that Resio knowingly possessed marihuana with the intent to distribute it. United States v. Carrillo-Morales, 27 F.3d 1054, 1064 (5th Cir.1994). Possession may be actual or constructive, and the intent to distribute may be inferred from the quantity and value of the marihuana possessed. United States v. Casilla, 20 F.3d 600, 603 (5th" } ]

[ { "docid": "20207738", "title": "", "text": "issued a Rule 404(b) limiting instruction advising the jury that testimony concerning his character or prior bad acts could not be used as proof of his guilt. We have “never found it to be plain error when a court does not give a limiting instruction of any kind sua sponte with respect to Rule 404(b) type evidence.” United States v. Bamberg, 478 F.3d 934, 939 (8th Cir.2007). Moreover, we are satisfied that the absence of a limiting instruction did not affect Joos’ substantial rights. The government presented significant evidence at trial supporting his convictions. In light of the substantial evidence of Joos’ guilt, we conclude that “the failure to give a limiting instruction was not such plain error as to require reversal.” See Ladoucer, 573 F.3d at 638. D. Finally, Joos challenges his conviction for being a felon in possession of an explosive, in violation of 18 U.S.C. § 842(i)(l). He argues that the government presented insufficient evidence at trial to prove that he knowingly possessed the explosive material seized from the bunkhouse on his property. We review the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the verdict, accepting all reasonable inferences that support the verdict, and reversing only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt. United States v. Van, 543 F.3d 963, 964 (8th Cir.2008). To convict Joos of being a felon in possession of a firearm, the government was required to prove that he had knowingly possessed an explosive which had traveled in interstate commerce. 18 U.S.C. § 842(i)(l). “Knowing possession may be actual or constructive.” United States v. Cox, 627 F.3d 1083, 1085 (8th Cir.2010). Constructive possession exists when a person had control over the place where the contraband was located, or control, ownership, or dominion over the contraband itself. United States v. Jackson, 610 F.3d 1038, 1043 (8th Cir.2010). At trial an ATF agent testified that he found blasting caps in the bunkhouse on Joos’ property. In the same building he also recovered Missouri Department of Probation and Parole documents pertaining" }, { "docid": "12642179", "title": "", "text": "the evidence to support the verdict.” United States v. Percel, 553 F.3d 903, 910 (5th Cir.2008). A. Counts One and Two To prove its possession counts against Woerner, the government was required to show beyond a reasonable doubt that he (1) knowingly (2) possessed material containing an image of child pornography (3) that had been transported in interstate or foreign commerce by any means, including by computer. 18 U.S.C. § 2252A(a)(5)(B); Moreland, 665 F.3d at 149. At the close of evidence, Woer-ner moved for a directed verdict on the basis that the government “failed to prove each and every element of its necessary elements in regard to counts one through five.” On appeal, Woerner restricts his sufficiency challenge to the “knowing” and “possession” elements. Specifically, Woer-ner argues that the government cannot establish possession, much less knowing possession, because no witness testified that Woerner was at his computer when the child pornography was downloaded, possessed or distributed. The government may prove possession by showing that the defendant actually or constructively possessed material containing child pornography. Moreland, 665 F.3d at 149. “Actual possession means the defendant knowingly has direct physical control over a thing at a given time.” Id. “Constructive possession is the ownership, dominion or control over an illegal item itself or dominion or control over the premises in which the item is found.” Id. Where, as here, there is no evidence that the defendant had direct physical control over the images at issue, we proceed to a constructive possession analysis. See id. at 150; United States v. Terrell, 700 F.3d 755, 765 (5th Cir.2012). Our “common sense, fact-specific approach” to determine constructive possession often hinges on whether the defendant had exclusive or shared control over the place in which the child pornography was found. Moreland, 665 F.3d at 150-52. “Dominion, control, and knowledge, in most cases, may be inferred if a defendant had exclusive possession of the place in which the contraband is found, but this inference cannot be sustained if the defendant shared joint occupancy of the place.” Id. If the place where the child pornography is found is" }, { "docid": "15418490", "title": "", "text": "was made with reckless disregard for its truth. Cavazos, 288 F.3d at 709-10. The defendant challenging the warrant bears the burden of establishing these intentional or reckless false statements by a preponderance of the evidence. Id. Although Hinojosa argues that the government agent’s actions, when viewed in totality, establish a lack of good faith, his arguments are unpersuasive. At the hearing, Hinojosa failed to establish that any false statements were intentionally or recklessly made. Further, we conclude that reliance on the challenged warrant was objectively reasonable. Thus, we do not need to examine probable cause. Accordingly, the good faith exception applies and the trial court properly denied Hinojosa’s motion to suppress. Sufficiency of the Evidence Hinojosa also argues that the government introduced insufficient evidence to prove that he possessed the ammunition. We review a challenge to the sufficiency of the evidence by examining whether a “reasonable trier of fact could have found that the evidence established guilt beyond a reasonable doubt.” United States v. Smith, 296 F.3d 344, 346 (5th Cir.2002). In doing this, we must look at the evidence in the light most favorable to the verdict and make all reasonable inferences supporting the verdict. United States v. Alarcon, 261 F.3d 416, 421 (5th Cir.2001). Under 18 U.S.C. § 922(g)(1), the government must prove that the defendant was previously convicted of a felony, that he knowingly possessed ammunition, and that this ammunition traveled in or affected interstate commerce. United States v. De Leon, 170 F.3d 494, 497 (5th Cir.1999). Possession of the ammunition may be actual or constructive. Id. Both parties agree that the government only attempted to prove constructive possession in this case. This Court has defined constructive possession as ownership, dominion, or control over the contraband, or as dominion over the premises in which the contraband is found. United States v. Mergerson, 4 F.3d 337, 349 (5th Cir.1993); De Leon, 170 F.3d at 497. Although a defendant’s exclusive possession of a house may establish his dominion and control over contraband found there, his joint occupancy of a house will not, by itself, support the same conclusion. Mergerson," }, { "docid": "18029037", "title": "", "text": "laptop where he worked that looked like the laptop seized by police, and that no one else used his laptop regularly. This was sufficient evidence that he constructively possessed the child pornography found on his computer following his arrest. See United States v. Acosta, 619 F.3d 956, 960-61 (8th Cir.2010), cert. denied, — U.S. —, 131 S.Ct. 1618, 179 L.Ed.2d 513 (2011); United States v. Kain, 589 F.3d 945, 950 (8th Cir.2009). Evidence that multiple images of child pornography were found in electronic folders manually created by the computer’s user, as in this case, is sufficient evidence of knowing possession to support a § 2252(a)(4)(B) conviction. Koch, 625 F.3d at 478. In addition, the government presented evidence that some images found on Grauer’s computer were identical to images he had transmitted to “Jenny,” and that he told Jenny during their numerous chats that he hid images of topless girls on his hard drive so his wife would not find them. Viewed in the light most favorable to the verdict, the evidence was more than sufficient for a reasonable jury to find, beyond a reasonable doubt, that Grauer knowingly possessed visual depictions of minors engaging in sexually explicit conduct in violation of § 2252(a)(4)(B). IV. The § 2G1.3(b)(2)(A) Enhancement To determine Grauer’s advisory guidelines range, the Presentence Investigation Report (PSR) calculated the total offense level separately for each count of conviction. For the attempted enticement count, the PSR added to the base offense level of 28 a two-level enhancement under § 2G1.3(b)(2)(A) because “the offense involved the knowing misrepresentation of a participant’s identity to persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage in prohibited sexual conduct.” For the child pornography possession count, the PSR added to the base offense level of 18 enhancements totaling 19 levels, including a 7-level increase under § 2G2.2(b)(3)(E) for distribution of material intended to entice a minor to engage in prohibited sexual conduct. This made the possession count “the Group with the highest offense level,” resulting in a total offense level of 38 under § 3D1.4 and an advisory guidelines range" }, { "docid": "20763773", "title": "", "text": "conclude beyond 'a reasonable doubt that he “knowingly” received and possessed child pornography. This court reviews the sufficiency of the evidence in a jury trial de novo, Yarrington, 624 F.3d at 449, but we examine the evidence in a light most favorable to the jury’s verdict, resolving factual disputes and accepting all reasonable .inferences in favor of upholding the verdict, id. We will affirm a jury’s verdict “if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Worthey, 716 F.3d at 1113. We examine the facts supporting each conviction separately- i. Receipt Conviction Manning was convicted of violating 18 U.S.C. § 2252A(a)(2), which makes it a crime to “knowingly received” “any child pornography” that has been transported in interstate commerce “by any means, including by computer.” Manning claims no reasonable jury could have concluded beyond a reasonable doubt that Manning “knowingly” received the child pornography found on the hard drive of his laptop. This is so, according to Manning, because the evidence never demonstrated directly that he was the person who was using the computer to download the illegal images. He argues that in light of his so-called “remote access” theory—that someone, perhaps his wife or her purported lover, used a computer program to plant the child pornography and chat conversations on his computer in order to frame him—no reasonable jury could conclude beyond a reasonable doubt-that he was the person who downloaded the files. We disagree. The evidence presented at trial concerning Manning’s knowledge of receipt was strong and provided sufficient support for a guilty verdict. Law enforcement initially identified a computer with an IP address listed in Manning’s name that was offering child pornography for download on a peer-to-peer file-sharing service. Manning admitted to law enforcement that (a) he owned the computer alleged to have downloaded internet pornography; (b) access to the computer and internet was password-protected; and (c) he employed the username “mem659” for the computer, which was also a username for some of the chats found on it. Those chats further established Manning’s knowledge of receipt, as" }, { "docid": "5881399", "title": "", "text": "The government recommended a sentence within the guidelines range, Niggemann’s counsel argued for the 15-year mandatory ‘minimum, noting that Niggemann’s age—he was then 67 years old—meant that a -term longer than the statutory minimum would likely be a death sentence. The judge considered Niggemann’s age but also noted that he . showed no remorse and was a serial sex offender who had victimized vulnerable children. The judge imposed concurrent terms of 182 months and 122 months, just above the mandatory minimum and well below the guidelines range. II. Discussion Niggemann first contends that the government introduced insufficient evidence to support the convictions. This argument faces a “nearly insurmountable hurdle.” United States v. Sebolt, 460 F.3d 910, 914-15 (7th Cir. 2006). We review the evidence and draw all reasonable inferences in the light most favorable to the prosecution, and Niggemann must show that no rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. United States v. Coscia, 866 F.3d 782, 795 (7th Cir. 2017). As evidence-sufficiency challenges go, Niggemann’s is especially weak. He contends that the government failed to prove that he, rather than someone else, used his computers to download and view the child pornography. He calls this a case of “non-exclusive computer possession” because the computers were located in an open room and not password protected and his wife also occupied the home. Niggemann relies on two cases as support for this argument. In United States v. Moreland, the defendant, his wife, and his ailing father all had access to a computer that was found to contain child pornography. 665 F.3d 137, 143 (5th Cir. 2011). The father frequently used the computers late at night and admitted an interest in pornography. Id. at 147. The Fifth Circuit reversed the defendant’s conviction because the government had not introduced evidence to establish that the defendant himself—-rather than the father or someone else with access to the computer—had downloaded and viewed the child pornography. Id. at 150-52. Similarly, in United States v. Lowe, the defendant shared a home computer with his wife and a" }, { "docid": "3695460", "title": "", "text": "to suppress. C. Sufficiency of the Evidence Harris argues that there was insufficient evidence of his “possession” of the pistol seized from his SUV to support his convictions for possession of a firearm by a felon and possession of a firearm in furtherance of a drug trafficking crime. Because Harris preserved his challenge to the sufficiency of the evidence by moving for judgment of acquittal, we employ the usual de novo standard of review. United States v. Williams, 507 F.3d 905, 908 (5th Cir.2007). “Under this standard, we determine whether a reasonable jury could, find that the evidence establishes the guilt of the defendant beyond a reasonable doubt,” viewing the evidence in the light most favorable to the government and with all reasonable inferences and credibility choices made in support of a conviction. Id. Possession of a firearm may be “actual or constructive,” and “may be proved by circumstantial evidence.” United States v. Salinas, 480 F.3d 750, 759 (5th Cir.2007). “Constructive possession can be established by showing (1) ownership, dominion or control over an item; or (2) dominion or control over the place where the item is found.” Id. Here, the government established that Harris owned the SUV in which the pistol was found. It also presented testimony by Rubin that only Harris had a key to the vehicle, which remained locked at all, times, and, in particular, that she did not have access to it. “As an appellate court, it is not our task to weigh the evidence or determine the credibility of witnesses.” United States v. Ybarra, 70 F.3d 362, 364 (5th Cir.1995). In light of Rubin’s testimony and the absence of any evidence suggesting that Harris did not have “dominion or control” over his SUV, there is no doubt that a reasonable jury could have found Harris guilty of the firearm possession offenses beyond a reasonable doubt. We therefore affirm the denial of Harris’s motion for judgment of acquittal. D. Eighth Amendment Claim Harris contends that he received a life-sentence statutory enhance ment in violation of his Eighth Amendment right to be free from “cruel and unusual”" }, { "docid": "22473774", "title": "", "text": "for minor or minimal role in the conspiracy under U.S.S.G. § 3B1.2. The court determined for Counts I and II that Defendant had possessed 1028.62 grams of cocaine. Defendant was sentenced to 168 months of incarceration, followed by five years of supervised release. This timely appeal followed. II. Sufficiency of the Evidence Defendant claims that the evidence was insufficient to support conviction on any of the three counts against him. A defendant’s claim of insufficient evidence is reviewed de novo. See United States v. Jackson, 213 F.3d 1269, 1283 (10th Cir.2000). In order to conclude that the evidence was insufficient as a matter of law, we must view the evidence and reasonable inferences therefrom in the light most favorable to the government and then determine that no rational jury could have found Defendant guilty beyond a reasonable doubt. See United States v. Jenkins, 175 F.3d 1208, 1215 (10th Cir.) cert. denied, 528 U.S. 913, 120 S.Ct. 263, 145 L.Ed.2d 221 (1999). A. Felony Firearm Possession Defendant first alleges that the evidence was insufficient to establish that he possessed the Colt revolver seized from his home on October 23, 1997. To sustain a conviction under 18 U.S.C. § 922(g)(1), the government must prove a defendant: (1) “was convicted of a crime punishable by imprisonment exceeding one year;” (2) “thereafter knowingly possessed a firearm; and (3) the possession was in or affecting interstate or foreign commerce.” United States v. Adkins, 196 F.3d 1112, 1117 (10th Cir.1999). Defendant challenges only the second element: knowing possession. (Def.’s Br. at 59-60). Constructive possession is sufficient for conviction under this statute. See United States v. Wilson, 107 F.3d 774, 779 (10th Cir.1997). “In cases of joint occupancy, where the government seeks to prove constructive possession by circumstantial evidence, it must present evidence to show some connection or nexus between the defendant and the firearm or other contraband.” United States v. Mills, 29 F.3d 545, 549 (10th Cir.1994). Constructive possession requires a showing that a defendant knowingly holds the power to exercise dominion or control over the firearm. See Wilson, 107 F.3d at 779. Dominion or control" }, { "docid": "23244402", "title": "", "text": "of discretion. D. Sufficiency of the Evidence. Colonna argues that the evidence presented at trial did not support a conviction on Counts 1 and 2, possession of weapons and ammunition by a convicted felon. In reviewing the sufficiency of the evidence to support a conviction or a denial of a motion for judgment of acquittal, we review the record de novo to determine whether, viewing the evidence in the light most favorable to the government, a reasonable jury could have found the defendant guilty of the crime beyond a reasonable doubt. See United States v. Hien Van Tieu, 279 F.3d 917, 921 (10th Cir.2002). In order to prove a violation of § 922(g)(1), the government must establish the following elements beyond a reasonable doubt: (1) that the defendant was previously convicted of a felony; (2) that the defendant thereafter knowingly possessed a firearm or ammunition; and (3) that the possession was in or affecting interstate commerce. United States v. Taylor, 113 F.3d 1136, 1144 (10th Cir.1997). Mr. Colonna disputes only whether he “possessed” the weapons and ammunition. “Possession” under § 922(g)(1) includes both actual and constructive possession. See United States v. Mills, 29 F.3d 545, 549 (10th Cir.1994). Generally, an individual has constructive possession over an object when he or she knowingly has ownership, dominion, or control over the object and the premises where it is found. United States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th Cir.1998). In most cases, dominion, control, and knowledge may be inferred where a defendant has exclusive possession of the premises; however, “joint occupancy alone cannot sustain such an inference.” Mills, 29 F.3d at 549. In cases of joint occupancy, “where the government seeks to prove constructive possession by circumstantial evidence, it must present evidence to show some connection or nexus between the defendant and the firearm or other contraband.” Id. “While caution must be taken that the conviction not be obtained by piling inference on inference, an inference of constructive possession is reasonable if the conclusion flows from logical and probabilistic reasoning.” United States v. Lazcano-Villalobos, 175 F.3d 838, 843 (10th Cir.1999) (internal quotation" }, { "docid": "14353619", "title": "", "text": "one point in time, Abumayyaleh was informed he was not permitted to purchase firearms shown to him. Abumayyaleh’s response was one of irritation, showing his desire (or predisposition) to purchase a firearm. The district court correctly denied Abumayyaleh’s motion for judgment as a matter of law because the government did not induce Abumayyaleh to buy the firearm. Because we find Abumayyaleh did not show inducement, we need not address whether he had the predisposition to commit the crime. See United States v. Loftus, 992 F.2d 793, 798 (8th Cir.1993) (noting the prosecution is not required to prove predisposition when the defendant has not shown inducement). B. Sufficiency of the Evidence Abumayyaleh argues the government presented insufficient evidence he possessed the firearms found in the office because other members of his family had access to the office. “[S]uffieiency of the evidence [is reviewed] de novo, viewing evidence in the light most favorable to the government, resolving conflicts in the government’s favor, and accepting all reasonable inferences that support the verdict.” United States v. Piwowar, 492 F.3d 953, 955 (8th Cir.2007) (citation and internal quotation marks omitted). “[W]e may reverse only if we find that no reasonable jury could have found the defendant guilty beyond a reasonable doubt.” Id. (citation and internal quotation marks omitted). To convict Abumayyaleh, “the government was required to prove beyond a reasonable doubt ...: (1) [Abumayyaleh] previously had been convicted of a crime punishable by a term of imprisonment exceeding one year, (2) [Abumayyaleh] knowingly possessed a firearm and ammunition, and (3) the firearm and ammunition had been in or had affected interstate commerce.” Id. (citation omitted). The only contested issue in this case is the second element. “Knowing possession can be actual or constructive, as well as sole or joint.” Id. (citation omitted). Constructive possession is established if the defendant “had control over the place where the firearm was located, or control, ownership, or dominion over the firearm itself.” Id. (citation omitted). Simple “knowledge of presence combined with dominion over the premises in which the contraband is concealed will amount to constructive possession.” United States v." }, { "docid": "15117321", "title": "", "text": "of police misconduct or the “deliberate, reckless, or grossly negligent conduct” which the exclusionary rule is intended to deter. Herring, 129 S.Ct. at 702. We conclude that the district court did not err by denying the motion to suppress. III. Koch also challenges the sufficiency of the evidence supporting his conviction. We review a challenge to the sufficiency of the evidence de novo, “viewing evidence in the light most favorable to the government, resolving conflicts in the government’s favor, and accepting all reasonable inferences that support the verdict.” United States v. Scofield, 433 F.3d 580, 584-85 (8th Cir.2006). When assessing the sufficiency of the evidence following a court trial, we apply the same standard as when reviewing a jury verdict and will reverse only “if no reasonable [factfinder] could have found [the defendant] guilty beyond a reasonable doubt.” United States v. Gray, 369 F.3d 1024, 1028 (8th Cir.2004). In order to convict Koch of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), the government was required to prove that Koch knowingly possessed an item of child pornography which was transported or produced using materials transported in interstate commerce. Koch first contends that the evidence was insufficient to show that he “knowingly” possessed child pornography. The government presented evidence at trial that well over 100 separate images of child pornography were found on the computer and flash drive seized from a bedroom in the home he owned and occupied alone. The user names on both the computer and flash drive were variations on Koch’s first name, and the pornographic images on each were located in folders which had to have been manually created by a user of the flash drive and the computer. In addition to the images of child pornography, the computer and flash drive also contained documents authored by Koch and digital photographs of him created within days of when numerous images of child pornography were saved, moved, or deleted on both devices. Koch argues that while this evidence may show that he used both the computer and flash drive, it does not give rise to" }, { "docid": "18029036", "title": "", "text": "Grauer stipulated that one video depicted a minor, and the government presented testimony that other images and videos depicted minors. Eight images and seven videos were submitted to the jury on Count 4, identified by the electronic file names found on Grauer’s computer. The jury unanimously found that three images and five videos were child pornography that Grauer knowingly possessed on April 9, 2010, the day of his arrest. On appeal, Grauer argues the evidence was insufficient to convict him of “knowing” possession of child pornography because the government presented no evidence as to how the images came to be on his computer or when they were accessed. “We review a challenge to the sufficiency of the evidence de novo, viewing evidence in the light most favorable to the government, resolving conflicts in the government’s favor, and accepting all reasonable inferences that support the verdict.” United States v. Koch, 625 F.3d 470, 478 (8th Cir.2010) (quotations omitted). Grauer’s wife testified that he operated a business from his home office, that he kept a Hewlett Packard laptop where he worked that looked like the laptop seized by police, and that no one else used his laptop regularly. This was sufficient evidence that he constructively possessed the child pornography found on his computer following his arrest. See United States v. Acosta, 619 F.3d 956, 960-61 (8th Cir.2010), cert. denied, — U.S. —, 131 S.Ct. 1618, 179 L.Ed.2d 513 (2011); United States v. Kain, 589 F.3d 945, 950 (8th Cir.2009). Evidence that multiple images of child pornography were found in electronic folders manually created by the computer’s user, as in this case, is sufficient evidence of knowing possession to support a § 2252(a)(4)(B) conviction. Koch, 625 F.3d at 478. In addition, the government presented evidence that some images found on Grauer’s computer were identical to images he had transmitted to “Jenny,” and that he told Jenny during their numerous chats that he hid images of topless girls on his hard drive so his wife would not find them. Viewed in the light most favorable to the verdict, the evidence was more than sufficient" }, { "docid": "20207739", "title": "", "text": "property. We review the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the verdict, accepting all reasonable inferences that support the verdict, and reversing only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt. United States v. Van, 543 F.3d 963, 964 (8th Cir.2008). To convict Joos of being a felon in possession of a firearm, the government was required to prove that he had knowingly possessed an explosive which had traveled in interstate commerce. 18 U.S.C. § 842(i)(l). “Knowing possession may be actual or constructive.” United States v. Cox, 627 F.3d 1083, 1085 (8th Cir.2010). Constructive possession exists when a person had control over the place where the contraband was located, or control, ownership, or dominion over the contraband itself. United States v. Jackson, 610 F.3d 1038, 1043 (8th Cir.2010). At trial an ATF agent testified that he found blasting caps in the bunkhouse on Joos’ property. In the same building he also recovered Missouri Department of Probation and Parole documents pertaining to Joos. Agent Moreland testified that Joos had spoken to him extensively about explosives and had said that he kept materials on his property used to make explosive devices. Moreland further testified that he had not seen anyone else on Joos’ property during their meetings. Joos testified in his defense that he was unaware the blasting caps were in the bunkhouse, a building located about a mile from his residence. He also testified that a number of people stored things in the bunkhouse and that three people in addition to himself had keys to the building. The trial testimony provided strong evidence that Joos was at least in constructive possession of the blasting caps seized from the bunkhouse. Although Joos presented an alternative theo ry for the source of the explosives, “the presence of one possible ‘innocent’ explanation for the government’s evidence does not preclude a reasonable jury from rejecting the exculpatory hypothesis in favor of guilt beyond a reasonable doubt.” United States v. Maloney, 466 F.3d 663, 667 (8th Cir.2006). Based on the evidence" }, { "docid": "18029035", "title": "", "text": "improper for the prosecutor to conclude his closing argument by stating that the jury acts as the “conscience of the community,” as the district court had stated during voir dire. “Unless calculated to inflame, an appeal to the jury to act as the conscience of the community is not impermissible.” United States v. Sanchez-Garcia, 685 F.3d 745, 753 (8th Cir.2012) (quotation omitted). The concluding statement that the trial had compelled the jury “to see terrible things, disgusting things,” was fair comment on the trial evidence. There was no error, plain or otherwise, in the district court’s control of the closing arguments in this hard-fought trial. III. Sufficiency of the Evidence Following Grauer’s arrest, police conducted a warrant search of his home and seized a Hewlett Packard laptop computer from an office area in the home. A forensic computer examiner found numerous images and videos depicting suspected child pornography in user-created electronic folders. Count 4 of the superseding indictment charged him with knowing possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). At trial, Grauer stipulated that one video depicted a minor, and the government presented testimony that other images and videos depicted minors. Eight images and seven videos were submitted to the jury on Count 4, identified by the electronic file names found on Grauer’s computer. The jury unanimously found that three images and five videos were child pornography that Grauer knowingly possessed on April 9, 2010, the day of his arrest. On appeal, Grauer argues the evidence was insufficient to convict him of “knowing” possession of child pornography because the government presented no evidence as to how the images came to be on his computer or when they were accessed. “We review a challenge to the sufficiency of the evidence de novo, viewing evidence in the light most favorable to the government, resolving conflicts in the government’s favor, and accepting all reasonable inferences that support the verdict.” United States v. Koch, 625 F.3d 470, 478 (8th Cir.2010) (quotations omitted). Grauer’s wife testified that he operated a business from his home office, that he kept a Hewlett Packard" }, { "docid": "20291894", "title": "", "text": "B. Sufficiency of the Evidence Worthey argues that the district court erred in denying his motions for judgment of acquittal and motion for a new trial because the evidence was insufficient to convict him. He argues that the govern ment failed to prove (1) that he was the person who accessed the Internet and downloaded the child pornography found on the laptop; and (2) that the child pornography was saved in the laptop’s permanent memory as opposed to temporary cache. We review de novo the district court’s denial of the motion for judgment of acquittal, but “review a challenge to the sufficiency of the evidence deferentially and affirm if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Vega, 676 F.3d 708, 721 (8th Cir.2012) (quoting United States v. Augustine, 663 F.3d 367, 373 (8th Cir.2011)). We review the district court’s denial of the motion for a new trial for an abuse of discretion. United States v. Maybee, 687 F.3d 1026, 1032 (8th Cir.2012). “Although the district court may weigh the evidence and disbelieve witnesses, the verdict must be allowed to stand ‘[u]nless the district court ultimately determines that a miscarriage of justice will occur.’ ” Id. (alteration in original) (quoting United States v. Campos, 306 F.3d 577, 579 (8th Cir.2002)). As already noted, Worthey was convicted of receiving and possessing child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (a)(4)(B). “The convictions for receipt and possession of child pornography turn on essentially the same requirements and evidence, and thus will be discussed together.” United States v. White, 506 F.3d 635, 641 (8th Cir.2007). “The elements of receipt under 18 U.S.C. § 2252(a)(2) require the defendant to knowingly receive an item of child pornography, and the item to be transported in interstate or foreign commerce.” Id. “The elements of possession under 18 U.S.C. § 2252(a)(4)(B) require the defendant to knowingly possess an item of child pornography, and the item to be transported in interstate or foreign commerce by any means.” Id. We construe Worthey’s challenges as disputing" }, { "docid": "12642178", "title": "", "text": "initial search later determined to be unlawful). Having concluded that the good faith exception applies, we end our suppression analysis at this stage. United States v. Cavazos, 288 F.3d 706, 709 (5th Cir.2002). II. Sufficiency of the Evidence Woerner argues that the evidence adduced at trial is insufficient to support his convictions because no witness testified that Woerner was at his computer when the child pornography was downloaded, possessed or distributed. “A challenge to the sufficiency of evidence following a proper motion for acquittal is reviewed by this court de novo.” United States v. Winkler, 639 F.3d 692, 696 (5th Cir.2011). Because Woerner raised his sufficiency challenge at the close of evidence, the standard of review is “whether a rational trier of fact could have found that the evidence established the essential elements of the offense beyond a reasonable doubt,” United States v. Moreland, 665 F.3d 137, 148-49 (5th Cir.2011). In determining whether this standard is met, we “view the evidence in the light most favorable to the verdict and drawing all reasonable inferences from the evidence to support the verdict.” United States v. Percel, 553 F.3d 903, 910 (5th Cir.2008). A. Counts One and Two To prove its possession counts against Woerner, the government was required to show beyond a reasonable doubt that he (1) knowingly (2) possessed material containing an image of child pornography (3) that had been transported in interstate or foreign commerce by any means, including by computer. 18 U.S.C. § 2252A(a)(5)(B); Moreland, 665 F.3d at 149. At the close of evidence, Woer-ner moved for a directed verdict on the basis that the government “failed to prove each and every element of its necessary elements in regard to counts one through five.” On appeal, Woerner restricts his sufficiency challenge to the “knowing” and “possession” elements. Specifically, Woer-ner argues that the government cannot establish possession, much less knowing possession, because no witness testified that Woerner was at his computer when the child pornography was downloaded, possessed or distributed. The government may prove possession by showing that the defendant actually or constructively possessed material containing child pornography. Moreland," }, { "docid": "11309865", "title": "", "text": "his attempted-production and possession convictions. We review a sufficieney-ofthe-evidence claim de novo. United States v. Flores, 454 F.3d 149, 154 (3d Cir.2006) (citing United States v. Brodie, 403 F.3d 123, 133 (3d Cir.2005)). In doing so, we “ ‘examine the totality of the evidence, both direct and circumstantial,’ and ‘interpret the evidence in the light most favorable to the government as the verdict winner.’ ” United States v. Starnes, 583 F.3d 196, 206 (3d Cir.2009) (quoting United States v. Miller, 527 F.3d 54, 60, 62 (3d Cir.2008)). If “all the pieces of evidence, taken together, make a strong enough case to let a jury find [the defendant] guilty beyond a reasonable doubt, then we must uphold the jury’s verdict.” Brodie, 403 F.3d at 134 (quoting United States v. Coleman, 811 F.2d 804, 807 (3d Cir.1987)). Here, Pavulak’s challenge to his conviction for knowingly possessing child pornography falls short of its “extremely high” burden. Starnes, 583 F.3d at 206 (quoting United States v. Iglesias, 535 F.3d 150, 155 (3d Cir.2008)). To prove possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B), the evidence must show that Pavulak “knowingly possesse[d], or knowingly accesse[d] with an intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography” with the requisite connection to interstate commerce. Pavulak concedes that the images recovered from the laptop depict child pornography. But he argues that no rational jury could have found beyond a reasonable doubt that he knowingly possessed those images. See Appellant’s Br. at 33-37. The jury, though, had ample evidence to infer otherwise. The laptop had only a single password-protected Windows user account and contained photos of Pavulak, Pavulak claimed that the laptop was his computer, and the police recovered the laptop from the part of the CTI office in which he was living. Simply put, Pavulak was the laptop’s likeliest user. And Pavulak was also the likeliest person to have accessed the child-pornography images on the laptop. They were not buried away where an innocent user could have overlooked them. Twenty-nine of them were" }, { "docid": "20763772", "title": "", "text": "two compact discs in separate plastic cases. When the Memorex disc was found behind one of the discs in one of the plastic cases, the Memorex disc was added to the list of items seized. No proof of bad faith, ill. will, or tampering was shown, id., and any alleged inconsistencies Manning pointed out in the evidence logs were properly challenged on cross-examination. In other words, Manning offers no evidence to defeat the Memorex disc’s presumption 'of integrity; consequently, the district court did not abuse its discretion in admitting it. See United States v. Wilson, 565 F.3d 1059, 1066 (8th Cir.2009) (“The location and custody of the cellular phone were adequately identified and [the defendant] has failed to aver any facts showing change or alteration of the images on the cellular phone. Accordingly, he has failed to rebut the presumption of integrity. As a result, the district court did not abuse its discretion in admitting the cellular phone.”). B. Sufficiency of the Evidence Manning argues that the evidence was insufficient for a reasonable jury to conclude beyond 'a reasonable doubt that he “knowingly” received and possessed child pornography. This court reviews the sufficiency of the evidence in a jury trial de novo, Yarrington, 624 F.3d at 449, but we examine the evidence in a light most favorable to the jury’s verdict, resolving factual disputes and accepting all reasonable .inferences in favor of upholding the verdict, id. We will affirm a jury’s verdict “if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Worthey, 716 F.3d at 1113. We examine the facts supporting each conviction separately- i. Receipt Conviction Manning was convicted of violating 18 U.S.C. § 2252A(a)(2), which makes it a crime to “knowingly received” “any child pornography” that has been transported in interstate commerce “by any means, including by computer.” Manning claims no reasonable jury could have concluded beyond a reasonable doubt that Manning “knowingly” received the child pornography found on the hard drive of his laptop. This is so, according to Manning, because the evidence never demonstrated directly that" }, { "docid": "20291895", "title": "", "text": "Cir.2012). “Although the district court may weigh the evidence and disbelieve witnesses, the verdict must be allowed to stand ‘[u]nless the district court ultimately determines that a miscarriage of justice will occur.’ ” Id. (alteration in original) (quoting United States v. Campos, 306 F.3d 577, 579 (8th Cir.2002)). As already noted, Worthey was convicted of receiving and possessing child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (a)(4)(B). “The convictions for receipt and possession of child pornography turn on essentially the same requirements and evidence, and thus will be discussed together.” United States v. White, 506 F.3d 635, 641 (8th Cir.2007). “The elements of receipt under 18 U.S.C. § 2252(a)(2) require the defendant to knowingly receive an item of child pornography, and the item to be transported in interstate or foreign commerce.” Id. “The elements of possession under 18 U.S.C. § 2252(a)(4)(B) require the defendant to knowingly possess an item of child pornography, and the item to be transported in interstate or foreign commerce by any means.” Id. We construe Worthey’s challenges as disputing whether he was the one who downloaded the child pornography and if so, whether he “received” or “possessed” the child pornography. As recounted earlier, a forensic examination of the laptop revealed a user account called “dman” with the password “Badone76,” several file-sharing programs under the “dman” user account, an email address associated with the laptop of “Dman76something@gmail,” and a user-name for Arkansas State University online that contained the name “Dustin Worthey.” In addition to the evidence obtained from the laptop, the government also introduced Worthey’s inculpatory statements. We conclude that the evidence found on the laptop, considered together with Worthey’s statements, was sufficient to establish that Worthey was the person who downloaded the child pornography found on the laptop in his residence. We also agree with the district court that the evidence was sufficient to establish that the files containing child pornography were knowingly downloaded and saved in the laptop’s permanent memory. Unlike United States v. Stulock, 308 F.3d 922, 925 (8th Cir.2002), in which we noted that the district court had acquitted the defendant" }, { "docid": "20763759", "title": "", "text": "MELLOY, Circuit Judge. A jury convicted Michael Manning of one count of receipt of child pornography and one count of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2) and (a)(5)(B), respectively. The district court sentenced him to the statutory maximum for each offense: 240 months for receipt and 120 months for possession. The court ordered the sen-fences to run consecutively, resulting in a total prison term of 360 months. The court also imposed a lifetime term of supervised release. Manning presents several arguments on appeal. First, he challenges the sufficiency of the evidence at trial, claiming the government failed to prove beyond a reasonable doubt that he knowingly possessed or received child pornography. Second, he contends the district court erred in admitting online conversations he had with other persons discussing the exchange of child pornography. Third, he argues his convictions for both receipt and possession violate his Fifth Amendment right to be free from double jeopardy. Fourth, Manning alleges the ultimate sentence the district court imposed was substantively unreasonable. We affirm. I.- Background We discuss the facts of this case “ ‘in the light most favorable to the jury’s verdict.’ ” United States v. Worthey, 716 F.3d 1107, 1109 (8th Cir.2013) (quoting United States v. Tremusini, 688 F.3d 547, 550 n. 2 (8th Cir.2012)). In July 2010, Missouri law enforcement officers used an online “peer-to-peer” file-sharing program'to download three images and one video of child pornography from an Internet Protocol (“IP”) address in Sullivan, Missouri. The IP address originated from an account belonging to Michael Manning. Law' enforcement subsequently executed a search warrant at Manning’s residence on September 25,- 2010. Manning was the only person at the home when officers arrived, and he denied downloading or having child pornography in his possession. Manning admitted during the search that he owned a laptop, that it was password-protected, that his login user-name to access the computer was “mem659,” \"and that he used a secured internet connection. He suggested in response to questioning that three of his friends could have accessed his computer and downloaded the images. Despite going through" } ]

[ { "docid": "22404018", "title": "", "text": "erred in dismissing the action against the Town based on its finding that there was no evidence of a municipal policy. Zahra argues that the jury should have been allowed to consider the issue of the Town’s liability because the evidence demonstrated that the Town did not meaningfully investigate or take any action against Lessard, Horton or Wieczorek, despite its awareness of violations such as those found by Judge Tanenbaum or alleged at the Town Board’s August 8, 1988 work session. We disagree. A municipality may not be held hable in an action under 42 U.S.C. § 1983 for actions alleged to be unconstitutional by its employees below the policymaking level solely on the basis of respondeat superior. Monell v. Department of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). To hold a municipality hable in such an action, “a plaintiff is required to plead and prove three elements: (1) an official pohcy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983); see also Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36; Ricciuti v. New York City Transit Auth., 941 F.2d 119, 122 (2d Cir.1991). We have previously ruled that a municipal pohcy may be inferred from the informal acts or omissions of supervisory municipal officials, Turpin v. Mailet, 619 F.2d 196, 200 (2d Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980), and that “municipal inaction such as the persistent failure to disciphne subordinates who violate [persons’] civil rights could give rise to an inference of an unlawful municipal pohcy of ratification of unconstitutional conduct,” Batista, 702 F.2d at 397. See also Ricciuti, 941 F.2d at 123 (pohcy may be inferred from “evidence that the municipality had notice of but repeatedly failed to make any meaningful investigation into charges that pohce officers had used excessive force in violation of the complainants’ civil rights”); Turpin, 619 F.2d at 201 (“where senior personnel have knowledge of a pattern of constitutionally offensive acts" } ]

[ { "docid": "21547402", "title": "", "text": "B. The Directed Verdict in Favor of the County In contrast, we conclude that, though the court similarly stated that the preponderance of the evidence favored the County, a directed verdict in favor of the County on Powell’s claim under § 1983 was proper. We reach this conclusion because the record is devoid of evidence from which the jury could have found that Powell was injured as the result of a municipal custom or policy, and because we are unpersuaded that Powell was unfairly denied the opportunity to present such evidence. 1. Sufficiency of the Evidence on the § 1983 Claim It is well established that a municipality may not be held liable solely on the basis of respondeat superior. See Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). In order to establish the liability of a municipality in an action under § 1983 for unconstitutional acts by its employees, a plaintiff must show that the violation of his constitutional rights resulted from a municipal custom or policy. See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 478-79, 106 S.Ct. 1292, 1297-98, 89 L.Ed.2d 452 (1986); City of Oklahoma City v. Tuttle, 471 U.S. 808, 818, 105 S.Ct. 2427, 2433, 85 L.Ed.2d 791 (1985); Monell v. Department of Social Services, 436 U.S. at 690, 694, 98 S.Ct. at 2035, 2037; Fiacco v. City of Rensselaer, 783 F.2d at 326; Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir.1985), cert. denied, 480 U.S. 916, 107 S.Ct. 1369, 94 L.Ed.2d 685 (1987). This does not mean that the plaintiff must show that the municipality had an explicitly stated rule or regulation. Villante v. Department of Corrections, 786 F.2d 516, 519 (2d Cir.1986). The inference that a policy existed may be drawn from circumstantial proof, such as evidence that the municipality customarily failed to train its employees and displayed a deliberate indifference to the constitutional rights of those within its borders, see, e.g., City of Canton v. Harris, - U.S. -, 109 S.Ct. 1197, 1206, 103 L.Ed.2d 412 (1989), or" }, { "docid": "16000239", "title": "", "text": "asserted various claims pursuant to 42 U.S.C. § 1983, which provides, in relevant part: Every person who, under color [of law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress .... 42 U.S.C. § 1983. Defendants maintain, first, that they entitled to summary judgment with regard to CUNY because Menes has failed to establish that a policy or custom of CUNY caused the deprivation of his federal constitutional rights, as he did not present evidence that the municipal action was taken with “deliberate indifference” to its obvious or known unconstitutional consequences. See Board of County Comm’rs. v. Brown, 520 U.S. 397, 406-07, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (citing Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “[A] municipality and its supervisory officials may not be held liable in a § 1983 action for the conduct of a lower-echelon employee solely on the basis of respondeat superior.” Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 122 (2d Cir.1991); Monell, 436 U.S. at 694, 98 S.Ct. 2018. In order to establish the liability of such defendants in an action under § 1983 for unconstitutional acts by such employees, a plaintiff must show that the violation of his constitutional rights resulted from a municipal custom or policy. See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 478-79, 106 S.Ct. 1292, 1297-98, 89 L.Ed.2d 452 (1986); City of Oklahoma City v. Tuttle, 471 U.S. 808, 818, 105 S.Ct. 2427, 2433, 85 L.Ed.2d 791 (1985); Monell, 436 U.S. at 694, 98 S.Ct. 2018; Fiacco v. City of Rensselaer, 783 F.2d at 326, 328 (2d Cir.1986). In order to satisfy this requirement, Menes need not prove that CUNY had a formal rule or regulation that caused the constitutional deprivation. See" }, { "docid": "11520033", "title": "", "text": "that plaintiffs malicious prosecution against defendant Lemma survives summary judgment, the Court must determine whether the County can be held liable under Section 1983. The County defendants move to dismiss the Section 1983 claims against the County on the basis that plaintiff has failed to establish the existence of any municipal policy or custom that caused plaintiffs alleged civil rights violations. For the reasons that follow, the Court concludes that there is a genuine issue of fact as to the County’s alleged failure to train and/or supervise Det. Lemma that precludes summary judgment on the municipal liability claim. The Supreme Court has explained that a municipal entity may be held liable under Section 1983 where a plaintiff demonstrates that the constitutional violation complained of was caused by a municipal “policy or custom.” Monell v. Dep’t of Social Servs. of N.Y.C., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “The policy or custom need not be memorialized in a specific rule or regulation.” Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir.1996) (citing Sorlucco v. N.Y.C. Police Dep’t, 971 F.2d 864, 870 (2d Cir.1992)). Instead, constitutional violations by government officials that are “persistent and widespread” can be “so permanent and well settled as to constitute a custom or usage with the force of law, and thereby generate municipal liability.” Sorlucco, 971 F.2d at 870-71 (citing Monell, 436 U.S. at 691, 98 S.Ct. 2018) (internal quotation marks omitted). Moreover, a policy, custom, or practice of the entity may be inferred where “ ‘the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.’ ” Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir.2004) (quoting Kern, 93 F.3d at 44). However, a municipal entity may be held liable only where the entity itself commits a wrong; “a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell, 436 U.S. at 691, 98 S.Ct. 2018. In his memorandum opposing summary judgment for the County, plaintiff rests his claim of municipal" }, { "docid": "18473014", "title": "", "text": "of the individual defendants. For the reasons set forth below, the Court concludes that summary judgment as to these entities is also warranted. Municipalities, including school boards, cannot be held vicariously liable for the actions of an employee under § 1983. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (“[A] municipality cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”). Thus, “[a] municipality will not be held liable under Section 1983 unless the plaintiff can demonstrate that the allegedly unconstitutional action of an individual law enforcement official was taken pursuant to a policy or custom ‘officially adopted and promulgated by that [municipality’s] officers.’ ” Abreu v. City of N.Y., No. 04-CV-1721 (JBW), 2006 WL 401651, at *4, 2006 U.S. Dist. LEXIS 6505, at *11 (E.D.N.Y. Feb. 22, 2006) (quoting Monell, 436 U.S. at 690, 98 S.Ct. 2018) (alteration in original). “[M]unicipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives” by city policymakers. City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 483-84, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). Thus, an individual’s misconduct will not result in respondeat superior liability for his supervisors absent specific allegations that he acted pursuant to an official policy or custom. Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir.1991). However, “[a] court may draw the inference of the existence of a policy or custom ‘when a plaintiff presents evidence that a municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.’ ” Caidor v. M & T Bank, No. 05-CV-297 (FSJ), 2006 WL 839547, at *9, 2006 U.S. Dist. LEXIS 22980, at *35-36 (N.D.N.Y. Mar. 27, 2006) (quoting Griffin-Nolan v. Providence Wash. Ins. Co., No. 04-CV-1453 (FJS), 2005 WL" }, { "docid": "16830731", "title": "", "text": "See, e.g., Malizia v. Westchester County Disk Attorney’s Office, No. 98-7043, 1998 WL 712424 at *2 (2d Cir. Oet.l, 1998) (unpublished) (false arrest and malicious prosecution claims were properly dismissed under Heck because plaintiffs “case did not terminate in his favor”); Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir.1995) (dismissing false arrest, false imprisonment and malicious prosecution claims under Heck, because plaintiff “has not demonstrated that his conviction has been invalidated in any manner”); Channer v. Mitchell, 43 F.3d 786, 787 (2d Cir.1994) (claims that defendant police officers committed perjury and coerced witnesses to wrongfully identify plaintiff was properly dismissed under Heck because plaintiff “offered no proof that his conviction had been independently invalidated”). IV. THE CITY AND COMMISSIONER BRATTON SHOULD BE GRANTED SUMMARY JUDGMENT ON MCAL-LISTER’S MONELL CLAIM SINCE MCALLISTER HAS FAILED TO ESTABLISH THAT THEY MAINTAINED A POLICY OR CUSTOM OF UNCONSTITUTIONAL BEHAVIOR It is well established that a municipality may not be held liable under § 1983 for alleged unconstitutional actions by its employees below the policemaking level solely upon the basis of respondeat superior. E.g., Monell v. Department of Soc. Servs, of City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978); DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir.1998); Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995); Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 122 (2d Cir.1991); Palmer v. City of Yonkers, 22 F.Supp.2d 283, 290 (S.D.N.Y. 1998); Smith v. Montefiore Med. Ctr., 22 F.Supp.2d 275, 282-83 (S.D.NY.1998); Brodeur v. City of New York, 96 Civ. 9421, 1998 WL 557599 at *8-9 (S.D.N.Y Sept.2, 1998); Covington v. City of New York, 94 Civ. 4234, 1998 WL 226183 at *3 (S.D.N.Y May 4, 1998); Carnegie v. Miller, 811 F.Supp. 907, 911 (S.D.N.Y.1993) (Wood, D.J.). Thus, in order to hold a municipality liable under § 1983 for the unconstitutional acts of its employees, the plaintiff must plead and prove that the violation of constitutional rights resulted from a municipal custom or policy. See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 478-83, 106 S.Ct." }, { "docid": "12170016", "title": "", "text": "L.Ed.2d 791(1985)). . See Palmieri v. Lynch, 392 F.3d 73, 78 (2d Cir.2004). . See Patterson v. County of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir.2004). . Abbas v. Dixon, 480 F.3d 636, 641 (2d Cir.2007) (quoting Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir.2002)). . Kotlyarsky v. New York Post, 195 Misc.2d 150, 757 N.Y.S.2d 703, 706 (2003) (citing Simcuski v. Saeli, 44 N.Y.2d 442, 406 N.Y.S.2d 259, 377 N.E.2d 713 (1978)) (other citations omitted). Accord Holmberg v. Armbrecht, 327 U.S. 392, 396-97, 66 S.Ct. 582, 90 L.Ed. 743 (1946) (explaining that a statute of limitations will be tolled if material facts are concealed). . Kotlyarsky, 757 N.Y.S.2d at 707 (citations omitted). . Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). . Jeffes v. Barnes, 208 F.3d 49, 56 (2d Cir.2000). Accord Monell, 436 U.S. at 691, 98 S.Ct. 2018. . Jeffes, 208 F.3d at 61 (quoting Board of County Comm’rs v. Brown, 520 U.S. 397, 405, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). . Monell, 436 U.S. at 690-91, 98 S.Ct. 2018. Accord Brown, 520 U.S. at 402, 117 S.Ct. 1382; Pembaur v. City of Cincinnati, 475 U.S. 469, 479-81, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). . See Tuttle, 471 U.S. at 831, 105 S.Ct. 2427 (Brennan, J., concurring in part and concurring in the judgment) (\"To infer the existence of a city policy from the isolated misconduct of a single, low-level officer, and then to hold the city liable on the basis of that policy, would amount to permitting precisely the theory of strict respondeat superior liability rejected in Monell .... ”). . See Monell, 436 U.S. at 690, 98 S.Ct. 2018. . See Pembaur, 475 U.S. at 480-81, 106 S.Ct. 1292. See also Walton v. Safir, 122 F.Supp.2d 466, 477 (S.D.N.Y.2001) (\"[T]he act of an official with final decision-making authority, if it wrongfully causes the plaintiff's constitutional injury, may be treated as the official act of the municipality ....”) (citing City of St. Louis v. Praprotnik, 485 U.S." }, { "docid": "22401906", "title": "", "text": "reasons below, we agree with the first and third contentions, and need not decide the second. A. The § 1983 Claims A municipality and its supervisory officials may not be held liable in a § 1983 action for the conduct of a lower-echelon employee solely on the basis of respondeat superior. Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). In order to establish the liability of such defendants in an action under § 1983 for unconstitutional acts by such employees, a plaintiff must show that the violation of his constitutional rights resulted from a municipal custom or policy. See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 478-79, 106 S.Ct. 1292, 1297-98, 89 L.Ed.2d 452 (1986); City of Oklahoma City v. Tuttle, 471 U.S. 808, 818, 105 S.Ct. 2427, 2433, 85 L.Ed.2d 791 (1985); Monell v. Department of Social Services, 436 U.S. at 690, 694, 98 S.Ct. at 2035, 2037; Fiacco v. City of Rensselaer, 783 F.2d 319, 326 (2d Cir.1986); Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir.1985), cert. denied, 480 U.S. 916, 107 S.Ct. 1369, 94 L.Ed.2d 685 (1987); Turpin v. Mailet, 619 F.2d 196 (2d Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980). Though this does not mean that the plaintiff must show that the municipality had an explicitly stated rule or regulation, see Villante v. Department of Corrections, 786 F.2d 516, 519 (2d Cir.1986), a single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy, see, e.g., City of Canton v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989); Fiacco v. City of Rensselaer, 783 F.2d at 328. The inference that a policy existed may, however, be drawn from circumstantial proof, such as evidence that the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction, see, e.g., City of Canton v. Harris, 489 U.S. at" }, { "docid": "16000240", "title": "", "text": "S.Ct. 2018, 56 L.Ed.2d 611 (1978). “[A] municipality and its supervisory officials may not be held liable in a § 1983 action for the conduct of a lower-echelon employee solely on the basis of respondeat superior.” Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 122 (2d Cir.1991); Monell, 436 U.S. at 694, 98 S.Ct. 2018. In order to establish the liability of such defendants in an action under § 1983 for unconstitutional acts by such employees, a plaintiff must show that the violation of his constitutional rights resulted from a municipal custom or policy. See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 478-79, 106 S.Ct. 1292, 1297-98, 89 L.Ed.2d 452 (1986); City of Oklahoma City v. Tuttle, 471 U.S. 808, 818, 105 S.Ct. 2427, 2433, 85 L.Ed.2d 791 (1985); Monell, 436 U.S. at 694, 98 S.Ct. 2018; Fiacco v. City of Rensselaer, 783 F.2d at 326, 328 (2d Cir.1986). In order to satisfy this requirement, Menes need not prove that CUNY had a formal rule or regulation that caused the constitutional deprivation. See Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.1995); Villante v. Dep’t of Corrections, 786 F.2d 516, 519 (2d Cir.1986). Rather, he need only produce evidence that CUNY was aware of a pattern of unconstitutional conduct by its employee but failed to take any action. See Walker v. City of New York, 974 F.2d 293, 300 (2d Cir.1992). However, Menes has not produced any evidence of “deliberate indifference” on the part of CUNY. Moreover, a single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy. See, e.g., City of Canton v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989); Fiacco v. City of Rensselaer, 783 F.2d at 328 (2d Cir.1986). As no evidence has been adduced in this case suggesting that a custom or policy of CUNY caused a deprivation of Menes’s civil rights, the § 1983 claim will be dismissed with regard to CUNY. Menes also alleges that Defendants subjected him to" }, { "docid": "464338", "title": "", "text": "fact as to the liability of DuRose in Ms official capacity as Commissioner of OCDSS. We note that tMs suit, since it is brought against DuRose in Ms official capacity, is equivalent to a suit against OCDSS and Oneida County. See Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 3104-05, 87 L.Ed.2d 114 (1985). Thus, a verdict, as a matter of law, against DuRose in this suit would be appropriate only if the facts are such that any reasonable jury would have had to return a verdict against the Department. And a mumeipality may be not be held liable in an action under 42 U.S.C. § 1983 for actions alleged to be unconstitutional by its employees below the policymaMng level solely on the basis of respondeat superior. See Monell v. Department of Soc. Seros., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). In order to establish mumcipal liability, “a plaintiff must show that the violation of Ms constitutional rights resulted from a mumcipal custom or policy.” Ricciuti v. New York City Transit Auth., 941 F.2d 119, 122 (2d Cir.1991); see also Pembaur v. City of Cincinnati, 475 U.S. 469, 478-81, 106 S.Ct. 1292, 1297-99, 89 L.Ed.2d 452 (1986). Although tMs rule “does not mean that the plaintiff must show that the mumeipality had an explicitly stated rule or regulation, a single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a mumcipal policy.” Ricciuti, 941 F.2d at 123 (citations omitted). “The inference that a policy existed may, however, be drawn from circumstantial proof, such as evidence that the mumeipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction, or evidence that the mumeipality had notice of but repeatedly failed to make any meaningful investigation into charges” that its agents were violating citizens’ constitutional rights. Id. (citations omitted). Having considered the applicable legal standards, the district court may conclude that its initial judgment was correct. If, however, the court finds that a" }, { "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": "1749454", "title": "", "text": "Court actions provided that the district [attorney consents to such discontinuance,” Timothy Coyle does not claim that the County Defendants had notice of this stipulation; that they learned of any information vitiating the probable cause for the arrest; or that they prosecuted the underlying charges with malice. Accordingly, the Section 1983 and the New York State cause of action for malicious prosecution is dismissed. C. As to Municipal Liability. The Plaintiff also names the Nassau County Police Department and the County of Nassau as defendants in his complaint. A municipal body may not be held liable under § 1983 for the unconstitutional acts of its employees absent allegations that such acts are attributable to a municipal custom, policy or practice. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-94, 98 S.Ct. 2018, 56 L.Ed2.d 611 (1978); see also Pembaur v. Cincinnati, 475 U.S. 469, 478-79, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir.2000) (noting that a municipality “cannot properly be held liable ... unless the ‘injury was inflicted by [its] lawmakers or by those whose edicts or acts may fairly be said to represent official policy’ ”), cert. denied, 531 U.S. 813, 121 S.Ct. 47, 148 L.Ed.2d 16 (2000); Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir.1991). Having concluded that the Plaintiff has not sufficiently alleged that his constitutional rights were violated, the Court finds that there can be no cognizable claim against the municipal defendants. Dodd v. Norwich, 827 F.2d 1, 8 (2d Cir. maintain a claim against the municipality). Moreover, there are no allegations concerning an underlying municipal policy or custom which deprived the plaintiff of a constitutional right. Thus, the Plaintiffs claims for municipal liability also fail against the Police Department and the County. D. As to the New York State Law Claims for Assault and Battery. A review of the amended complaint reveals no claim for excessive force pursuant to Section 1983. However, there are claims for assault and battery pursuant to New York State Law. Because the federal claims against" }, { "docid": "16830732", "title": "", "text": "basis of respondeat superior. E.g., Monell v. Department of Soc. Servs, of City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978); DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir.1998); Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995); Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 122 (2d Cir.1991); Palmer v. City of Yonkers, 22 F.Supp.2d 283, 290 (S.D.N.Y. 1998); Smith v. Montefiore Med. Ctr., 22 F.Supp.2d 275, 282-83 (S.D.NY.1998); Brodeur v. City of New York, 96 Civ. 9421, 1998 WL 557599 at *8-9 (S.D.N.Y Sept.2, 1998); Covington v. City of New York, 94 Civ. 4234, 1998 WL 226183 at *3 (S.D.N.Y May 4, 1998); Carnegie v. Miller, 811 F.Supp. 907, 911 (S.D.N.Y.1993) (Wood, D.J.). Thus, in order to hold a municipality liable under § 1983 for the unconstitutional acts of its employees, the plaintiff must plead and prove that the violation of constitutional rights resulted from a municipal custom or policy. See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 478-83, 106 S.Ct. 1292, 1297-300, 89 L.Ed.2d 452 (1986); Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993); Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983); Brodeur v. City of New York, 1998 WL 557599 at *9; Gonzalez v. City of New York, 97 Civ. 2246, 1998 WL 382055 at *2 (S.D.NY. July 9,1998); Covington v. City of New York, 1998 WL 226183 at *3; King v. Department of Correction, 95 Civ. 3057, 1998 WL 67669 at *3 (S.D.N.Y. Feb.18,1998); Muniz v. New York, 96 Civ. 5931, 1997 WL 576033 at *2 (S.D.N.Y. Sept.15, 1997); Palacios v. Correctional Officer John Doe, 95 Civ. 6855, 1997 WL 458816 at *1 (S.D.N.Y. Aug.12, 1997); Woo v. City of New York, 93 Civ. 7007, 1996 WL 457337 at *4 (S.D.N.Y. Aug.14, 1996) (Peck, M.J.); Covington v. City of New York, 916 F.Supp. 282, 288 (S.D.N.Y.1996) (Peck, M.J.). Absent a showing of a causal link between an official policy or custom and the plaintiffs injury, Monell prohibits a finding of liability against the City. Monell v. Department of" }, { "docid": "11473695", "title": "", "text": "light of Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Municipal Defendants may not be held liable solely on the basis of a respondeat superior theory. Id. at 691, 694, 98 S.Ct. at 2036, 2037; Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 122 (2d Cir.1991). Monell requires that Domenech show, as to these defendants, “a direct causal link between a municipal policy or custom, and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989); Ricciuti, 941 F.2d at 122. At the threshold, however, “only those municipal officials who have ‘final poli-cymaking authority’ may by their actions subject the government to Section 1983 liability.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127-130, 108 S.Ct. 915, 932, 99 L.Ed.2d 107 (1985) (plurality opinion) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 1300, 89 L.Ed.2d 452 (1986) (plurality opinion)). Whether a municipal official has “final policymaking authority” is a question of state law for the trial judge to determine. Frank v. Relin, 1 F.3d 1317, 1327 (2d Cir.), cert. denied, — U.S. -, 114 S.Ct. 604, 126 L.Ed.2d 569 (1993); Jett v. Dallas Indep. School Dist., 491 U.S. 701, 736, 109 S.Ct. 2702, 2723, 105 L.Ed.2d 598 (1989) (adopting the logic of the Praprot-nik plurality). In the Supreme Court case of City of St. Louis v. Praprotnik, the municipal defendant did not have an express policy regarding the use of retaliatory personnel policies. Although here the City of New York has an express non-discrimination policy, this does not end the inquiry. A prevalent custom of failure to comply with a municipality’s non-discrimination policies may itself demonstrate a municipal custom, or that a city’s actual policies differ from those it has announced. Praprotnik, 485 U.S. at 128-32, 108 S.Ct. at 928. As the Supreme Court said in Praprotnik: We nowhere say or imply, for example, that “a municipal charter’s precatory admonition against discrimination or any other employment practice not based on merit and fitness effectively insulates the" }, { "docid": "20718638", "title": "", "text": "526 F.Supp.2d at 377-78 (same); Welch, 1997 WL 436382, at *5 (same); see also Martin v. Russell, 563 F.3d 683, 686 (8th Cir.2009) (same). Accordingly, even assuming arguendo that probable cause was lacking, Officer Vezzi is entitled to summary judgment on qualified immunity grounds because there was arguable probable cause to arrest. 3. Monell Claims Plaintiff also asserts § 1983 claims against Suffolk County for failing to adequately train police officers and for promulgating a “Mandatory Arrest Policy” in cases involving alleged violations of protective orders. As set forth below, the County is entitled to summary judgment on these claims. Under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a municipal entity may be held liable under § 1983 where a plaintiff demonstrates that the constitutional violation complained of was caused by a municipal “policy or custom.” Monell, 436 U.S. at 694-95, 98 S.Ct. 2018; Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir.2004) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733-36, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989) and Monell, 436 U.S. at 692-94, 98 S.Ct. 2018). “The policy or custom need not be memorialized in a specific rule or regulation.” Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir.1996) (citing Sorlucco v. N.Y. City Police Dep’t, 971 F.2d 864, 870 (2d Cir.1992)). A policy, custom, or practice of the municipal entity may be inferred where “ ‘the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.’ ” Patterson, 375 F.3d at 226 (quoting Kern, 93 F.3d at 44). However, a municipal entity may only be held liable where the entity itself commits a wrong; “a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell, 436 U.S. at 691, 98 S.Ct. 2018. Here, it is not disputed that Suffolk County maintains a “Mandatory Arrest Policy” in situations involving an alleged violation of a protection order. {See Defs.’ Mem. of Law at 6-8.) However, because probable cause" }, { "docid": "20491282", "title": "", "text": "in their official capacity may be held liable under § 1981. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735-36,109 S.Ct. 2702, 105 L.Ed.2d 598 (1989); see also Everson v. N.Y. City Transit Auth., No. 02-1121, 2007 WL 539159, at *33 (E.D.N.Y. Feb. 16, 2007). However, a § 1981 plaintiff suing a municipal entity must “prove that the violation was committed pursuant to a ‘policy, statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officer.’ ” Bazile v. N.Y. City Hous. Auth., No. 00-7215, 2002 WL 171690, at *16 (S.D.N.Y. Feb. 1, 2002) (quoting Monell v. Dep’t of Soc. Svcs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)); see also Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995) There is no § 1981 liability against a municipality on a theory of respondeat superior. Monell, 436 U.S. at 691, 98 S.Ct. 2018 (“a municipality cannot be held liable solely because it employs a tortfeasor”); Jett, 491 U.S. at 738, 109 S.Ct. 2702. Rather, it must be 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" }, { "docid": "16232814", "title": "", "text": "qualified immunity and we deny defendants’ motion for summary judgment on this issue. 2. Municipal Liability Under § 1983 Defendants argue that plaintiffs § 1983 claim against the Town must be dismissed because plaintiff cannot establish municipal liability. “A municipality may not be held liable in an action under § 1983 for actions alleged to be unconstitutional by its employees below the policymaking level solely on the basis of respondeat superior.” Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995) (citing Monell v. Department of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Nonetheless, a § 1983 claim may be brought against a municipality where a “policy or custom” of the municipality deprived the plaintiff of his constitutional rights. See id. at 690-91. To establish municipal liability, a plaintiff must show that an identified municipal policy or practice was the “moving force [behind] the constitutional violation.” Id. at 694. Furthermore, “there must be proof of such a custom or policy in order to permit recovery on claims against individual municipal employees in their official capacities, since such claims are tantamount to claims against the municipality itself.” Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993) (citing Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991)). Where no municipal policy exists, “liability may nonetheless arise from ‘a course.of action tailored to a particular situation’ by a municipal decision maker, provided that ‘the decision maker possesses final authority to establish municipal policy with respect to the action ordered.’ ” Legal Aid Soc’y v. City of New York, 114 F.Supp.2d 204, 231 (S.D.N.Y.2000) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). As the Second Circuit recently explained: Where the contention is not that the actions complained of were taken pursuant to a local policy that was formally adopted or ratified but rather ... were taken or caused by an official whose actions represent official policy, the court must determine whether that official had final policymaking authority in the particular area" }, { "docid": "20034692", "title": "", "text": "No. 03 CV 6477, 2006 WL 1699606, at *5 (S.D.N.Y. June 21, 2006) (denying motion for summary judgment on plaintiffs denial of a fair trial claim on the basis of discrepancies in the parties’ testimonies as to how the bag of drugs that led to plaintiffs arrest ended up on the ground next to plaintiff). vi. Municipal Liability As his final claim, Brandon asserts that the City of New York is liable for the individual Defendants’ alleged constitutional violations pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “Municipalities may be sued directly under § 1983 for constitutional deprivations inflicted upon private individuals pursuant to governmental custom, policy, ordinance, regulation, or decision.” Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983) (citing Monell, 436 U.S. at 658, 98 S.Ct. 2018). A municipality is not liable for a § 1983 claim on the theory of respondeat superior but rather on the basis that its policies or customs “inflicted] the injury upon the plaintiff.” Id. “To hold a city liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Id.; see also Kahn v. Oppenheimer & Co., No. 08 Civ. 11368, 2009 WL 4333457, at *3 (S.D.N.Y. Dec. 1, 2009). A plaintiff may satisfy the “policy, custom or practice” requirement in one of four ways. See Moray v. City of Yonkers, 924 F.Supp. 8, 12 (S.D.N.Y.1996). The plaintiff may allege the existence of (1) a formal policy officially endorsed by the municipality (see Monell, 436 U.S. at 690, 98 S.Ct. 2018); (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question (see Bd. of County Comm’rs v. Brown, 520 U.S. 397, 404-06, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (plurality opinion); Walker v. City of" }, { "docid": "22874311", "title": "", "text": "represented]” an informal NYPD practice in violation of § 1983. Id. at 694, 98 S.Ct. at 2037. In addition, she claims that the evidence was sufficient for the jury to conclude that the Commissioner’s decision to terminate her was based upon gender discrimination. She further argues that, with respect to the hiring and firing of probationary police officers, the Commissioner is the final policy-making authority for New York City, and thus, his single discriminatory act is sufficient to generate § 1983 liability. See Jett v. Dallas Independent School Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 2723, 105 L.Ed.2d 598 (1989); St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 924, 99 L.Ed.2d 107 (1988) (plurality); Pembaur v. Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986). Because we conclude that Sorlucco adduced sufficient evidence from which the jury could reasonably infer an unconstitutional NYPD practice of sex discrimination, we need not reach Sorlucco’s argument regarding the Commissioner’s actions. A municipal agency may not be held liable under § 1983 simply for the isolated unconstitutional acts of its employees. Monell, 436 U.S. at 694, 98 S.Ct. at 2037 (rejecting respondeat superior as a basis of § 1983 liability). In order to impose § 1983 liability upon a municipality, a plaintiff must demonstrate that any constitutional harm suffered was the result of a municipal policy or custom. Id. at 690-91, 98 S.Ct. at 2035-36; see also Pembaur, 475 U.S. at 478-79, 106 S.Ct. at 1297-98; Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 122 (2d Cir.1991); Fiacco v. City of Rensselaer, 783 F.2d 319, 326 (2d Cir.1986). The policy or custom used to anchor liability need not be contained in an explicitly adopted rule or regulation. See Ricciuti, 941 F.2d at 123. Constitutional deprivations actionable under § 1983 may be “visited pursuant to governmental ‘custom’ even though such custom has not received formal approval through the body’s official decisionmaking channels.” Monell, 436 U.S. at 691, 98 S.Ct. at 2036. So long as the discriminatory practices of city officials are persistent and widespread, they “could be" }, { "docid": "15886267", "title": "", "text": "the constitutional violation by a municipal employee resulted from a custom, policy, or practice of the municipality. See Monell, 436 U.S. at 694, 98 S.Ct. at 2036; DeCarlo v. Fry, 141 F.3d at 61; Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.1995). A plaintiff need not demonstrate that the municipality had a formal rule or regulation that cause the deprivation. See Vann, 72 F.3d at 1048; Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir.1991). A plaintiff can show a municipal custom, policy or practice by establishing that an official who is a final policymaker directly committed or commanded the constitutional violation, or by showing that a policymaker indirectly caused the misconduct of a subordinate municipal employee. See Monell, 436 U.S. at 690, 98 S.Ct. 2018, 56 L.Ed.2d 611; Jeffes, 208 F.3d at 61. Liability based on indirect causation can be established by showing “ ‘acquiescence in a longstanding practice or custom which constitutes the “standard operating procedure” of the local government entity.’ ” Jeffes, 208 F.3d at 61 (citation omitted). A municipal policy or practice can also be inferred from a failure by policymakers to train their subordinates amounting to “deliberate indifference” to the rights of those who come in contact with the municipal employees. See City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); DeCarlo, 141 F.3d at 61; Ricciuti, 941 F.2d at 123. A plaintiff can also prove such deliberate indifference by showing “that the municipality had notice of but repeatedly failed to make any meaningful investigation into charges that its agents were violating citizens’ constitutional rights.” DeCarlo, 141 F.3d at 61; Vann, 72 F.3d at 1049 (holding that a plaintiff “may establish the pertinent custom or policy by showing that the municipality, alerted to the possible use of excessive force by its police officers, exhibited deliberate indifference”); Ricciuti, 941 F.2d at 123; Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983) (“Municipal inaction such as the persistent failure to discipline subordinates who violated civil rights could give rise to an inference of an" }, { "docid": "15886266", "title": "", "text": "were employed at the time of the incident. Clearly, the municipality has received notice of the action and has responded. Accordingly, the Court will treat the official-capacity claims against Neve as claims against the Village of Lynbrook, and will direct the Clerk of the Court to amend the caption of the complaint to substitute the Village of Lynbrook for Neve in his official capacity and for the LPD. Because a municipality can act only through its employees, the question of liability turns on whether it can be held liable for the unconstitutional acts of its employees. Municipal liability under Section 1983 cannot be based on a theory of respondeat superior. See Board of the County Commissioners of Bryan County v. Brown, 520 U.S. 397, 404-05, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691, 694, 98 S.Ct. 2018, 2036, 2038, 56 L.Ed.2d 611 (1978); Jeffes v. Barnes, 208 F.3d 49, 56-57 (2d Cir.2000); DeCarlo, 141 F.3d at 61. Rather, the plaintiff must show that the constitutional violation by a municipal employee resulted from a custom, policy, or practice of the municipality. See Monell, 436 U.S. at 694, 98 S.Ct. at 2036; DeCarlo v. Fry, 141 F.3d at 61; Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.1995). A plaintiff need not demonstrate that the municipality had a formal rule or regulation that cause the deprivation. See Vann, 72 F.3d at 1048; Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir.1991). A plaintiff can show a municipal custom, policy or practice by establishing that an official who is a final policymaker directly committed or commanded the constitutional violation, or by showing that a policymaker indirectly caused the misconduct of a subordinate municipal employee. See Monell, 436 U.S. at 690, 98 S.Ct. 2018, 56 L.Ed.2d 611; Jeffes, 208 F.3d at 61. Liability based on indirect causation can be established by showing “ ‘acquiescence in a longstanding practice or custom which constitutes the “standard operating procedure” of the local government entity.’ ” Jeffes, 208 F.3d at 61" } ]

[ { "docid": "11280185", "title": "", "text": "render it improper, in his opinion, for him to sit on the trial, appeal, or other proceeding therein. Congress enacted the revision to make the statute conform to the Code of Judicial Conduct, 119 Cong.Rec. 33029 (1973) (remarks of Senator Burdick) as well as to “broaden and clarify the grounds for disqualification”, 119 Cong.Rec. 33029 (1973), and to substitute an objective test of reasonableness for the subjective test of the former Section 455. Under the broader standard of revised Section 455(a), disqualification is appropriate not only where there is actual or apparent bias or prejudice, but also when the circumstances are such that the judge’s “impartiality might be reasonably questioned.” See 13 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction, Section 3549. Thus, the grounds for disqualification set out in Section 144 — “personal bias or prejudice either against [a party] or in favor of any adverse party”- — are included in Section 455. Moreover, the language of Section 455(a) allows a greater flexibility in determining whether disqualification is warranted in particular situations. 13 Wright, Miller & Cooper, Section 3542. In Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188, 44 L.W. 3589 (1976), it was held that the revised Section 455 did not require disqualification where bias in favor of or against an attorney, as opposed to a party, is alleged. We do not believe, however, that this is strictly true, for bias in favor of or against an attorney can certainly result in bias toward the party. Thus, if a judge is biased in favor of an attorney, his impartiality might reasonably be questioned in relationship to the party. In our opinion the only issue presented is legal’sufficiency of the affidavit. Unfortunately for the government, however, the affidavit is filled with conclusions and opinion and is peculiarly short on facts. II. WHETHER THE GOVERNMENT HAS ESTABLISHED ACTUAL BIAS In support of its contention that actual bias existed against the government and in favor of the defendants in the subject antitrust" } ]

[ { "docid": "23688235", "title": "", "text": "reasonably be questioned.” 28 U.S.C. § 455(a). Section 455(a) addresses the appearance of impropriety rather than actual bias. Summers v. Singletary, 119 F.3d 917, 920 (11th Cir.1997). Recusal under section 455(a) “should follow if the reasonable man, were he to know all the circumstances, would harbor doubts about the judge’s impartiality.” United States v. Alabama, 828 F.2d at 1541 (internal quotation marks omitted) (quoting Potashnick v. Port City Constr. Co., 609 F.2d 1101, 1111 (5th Cir.1980)). In addition to addressing the appearance of impropriety under section 455(a), Congress enacted section 455(b) to protect parties from actual bias on the part of judges. Parker v. Connors Steel Co., 855 F.2d 1510, 1527 (11th Cir.1988) (“§ 455(b) is stricter than § 455(a) and is concerned with situations that may involve actual bias rather than § 455(a)’s concern with the public’s perception of the judicial process.”). Congress recognized that there are “certain situations where the potential for conflicts of interest are readily apparent.” United States v. Alabama, 828 F.2d at 1541. Congress enumerated the circumstances which it believed were likely to lead to actual bias on the part of the judge in section 455(b), and thus established a per se rule requiring automatic disqualification in any case in which any of the enumerated circumstances is present. See Summers, 119 F.3d at 920 (“§ 455(b) establishes a per se rule that lists certain circumstances requiring recusal.”). B. One of the circumstances in which Congress believed there would likely be actual bias on the part of the judge is when the judge’s third-degree relative appears before the judge as a lawyer for one of the parties. Congress enumerated this circumstance in section 455(b)(5)(ii), which requires a judge to automatically disqualify himself in any case in which his or his spouse’s third-degree relative “[i]s acting as a lawyer in the proceeding.” 28 U.S.C. § 455(b)(5)(h). Congress enacted section 455(b)(5)(h) to protect parties from “homecooking” — i.e., judicial bias in favor of a third-degree relative. The version of section 455 in effect before the 1974 amendments lent itself to homecooking. Under the former section 455, recusal when" }, { "docid": "11894273", "title": "", "text": "the 1974 amendment reveals that the Justice Department suggested that the new statute should include some explicit limitation of time similar to § 144 “to prevent applications of disqualification from being filed near the end of a trial when the underlying facts were known long before,” H.R.Rep.No.93-1453, 93d Cong., 2d Sess. 9, reprinted in [1974] U.S.Code Cong. & Ad.News 6351, 6358. However, Congress did not, for reasons of its own, incorporate this recommendation into the statute. One court has read this fact as proof that Congress did not intend any timeliness requirements for § 455. SCA Services, Inc. v. Morgan, 557 F.2d 110, 117 (7th Cir. 1977). However, prior to the 1974 amendment courts had generally held that a timely objection under the old § 455 was necessary. E.g., Adams v. United States, 302 F.2d 307, 309 (5th Cir. 1962); 13 Wright, Miller & Cooper Federal Practice and Procedure: Civil § 3552 at 382 n.l and cases cited therein. Thus “Congress’ failure to act could as easily have been the result of a belief that the judicial gloss on old section 455 would survive.” Note, Disqualification of Federal Judges for Bias or Prejudice, 46 U.Chi.L.Rev. 236, 263 (1978) (hereinafter cited as Disqualification of Judges); see Davis v. Board of School Commissioners of Mobile County, supra (New § 455 was designed to eliminate only specific judicial gloss given statute by subjective “opinion of judge” test and “duty to sit” test; judicial gloss on statute requiring that bias be extra-judicial remains in full force after new enactment.). We thus are unconvinced that the question is conclusively determined by the legislative history of the 1974 amendments, and we must base our decision on other considerations as well. The general purposes behind the statute as well as the statute’s language might seem to indicate that no timeliness requirement should obtain. First, the statute is directed to judges, not to litigants, and it is meant to be self-enforcing. Thus whenever the judge is called upon to disqualify himself he should be prepared and required to consider the propriety of his remaining in the case. Second," }, { "docid": "1518308", "title": "", "text": "ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith. . See generally Note, Disqualification of Federal Judges for Bias under 28 U.S.C. § 144 and Revised Section 455, 45 Fordham L.Rev. 139, 146-47 (1976); Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv.L. Rev. 736 (1973); Frank, Commentary on Disqualification of Judges — Canon 3C, 1972 Utah L.Rev. 377. . The relevant provisions of 28 U.S.C. § 455 read: (a) Any justice, judge, magistrate, or referee in bankruptcy of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; .... . See Fordham Note, supra, at 148-59. The legislation amending the disqualification provisions, the “Bayh” bill, originally contained a revision of § 144 as well as § 455. The proposed amendment to § 144 would have clarified the relationship between the sections, and it also contained a provision allowing peremptory challenges to district court judges. The amendment was withdrawn, see Hearings on S.1064 Before the Subcomm. on Improvements in Judicial Machinery of the Senate Comm, on the Judiciary, 93d Cong., 1st Sess. 76 (1973). See also Frank, Disqualification of Judges: In Support of the Bayh Bill, 35 Law & Contemp. Problems 43 (1970). . Section 455 is a self-enforcing provision that is directed towards the judge, but may be raised by a party. See Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044, 1051-52 (5th Cir. 1975); 13 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3550 (1975 ed.). Unlike § 144, § 455 does not require that an affidavit of'bias be" }, { "docid": "4002699", "title": "", "text": "likelihood of the presence of partiality is sufficiently great to support a rule of absolute disqualification. Judge Haden’s prior participation in the case, of course, was entirely judicial and not personal, but as a district judge he was reviewing the federal constitutional validity of what he previously had approved as a member of the Supreme Court of West Virginia. In that situation, there is a basis for a reasonable person to form a reasonable basis for questioning his impartiality and his capacity to provide the independent federal review that is requisite. That is enough to require disqualification under § 455(a), despite our confidence that, subjectively, Judge Haden was conscious of no want of impartiality. VACATED AND REMANDED FOR FURTHER PROCEEDINGS. . See H.R.Rep. No. 93-1453, 93d Cong. 2d Sess. (1974), reprinted in [1974] U.S.Code Cong. & Admin.News, pp. 6351, 6354-55; S.Rep. No. 93-419, 93d Cong., 1st Sess. 5, 7 (1973); Hearings on Judicial Disqualification Before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 93d Cong., 2d Sess. (1974); Hearings on Judicial Disqualification Before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 93d Cong., 1st Sess. (1973). . H.R.Rep. No. 93-1453, 93d Cong., 2d Sess. (1974), reprinted in [1974] U.S.Code Cong. & Admin.News, pp. 6351, 6354-55 (emphasis added). Identical language was included in S.Rep. No. 93-419, 93d Cong. 1st Sess. 5 (1973). . The facts of this case do not require us to decide “whether the requirement of reasonableness is to be considered from the vantage point of the litigant who has a stake in the outcome or from that of the uninvolved observer.” Note, 45 Fordham L.Rev. 139, supra note 14, at 148-52. This question appears to have provoked a split of opinion in the Fifth Circuit, see Parrish v. Board of Comm’rs, 524 F.2d 98 (5th Cir. 1975) (en banc), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976). . 12 ABA Rep. 289, 307, quoted in 13 Wright, Miller and Cooper Federal Practice and Procedure 360, § 3545. ." }, { "docid": "23138452", "title": "", "text": "or magistrate shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification. 28 U.S.C. § 455 (as amended Dec. 5, 1974, Pub.L. 93-512, § 1, 88 Stat. 1609; Nov. 6, 1978, Pub.L. 95-598, tit. II § 214(a), (b), tit. IV § 402(c), 92 Stat. 2661, 2682). . United States v. Amerine, 411 F.2d 1130, 1134 (6th Cir. 1969) (interpreting predecessor to § 455(a)). See SCA Services, Inc. v. Morgan, 557 F.2d 110, 117 (7th Cir. 1977); Davis v. Bd. of School Comm’rs, 517 F.2d 1044, 1051 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96a S.Ct. 1685, 48 L.Ed.2d 188 (1976) (office of § 144 procedure is to disqualify a judge prior to trial on motion of a party; § 455 is statutory standard for judicial self-disqualification); C. Wright, A. Miller & E. Cooper, supra note 3, at § 3550; Comment, supra note 3, at 260. . Id. Neither the text nor the legislative history of § 455(a) contain any suggestion that the procedures of § 144 are applicable to disqualification under § 455(a). See H.R.Rep.No.93-1453, 93d Cong., 2d Sess. (1974), reprinted in [1974] U.S.Code Cong. & Admin.News at 6351; C. Wright, A. Miller & E. Cooper, supra note 3, at § 3550; Comment, supra note 3, at 260. In fact, Congress disregarded suggestions that requirements such as timeliness apply to disqualification under § 455. See generally the discussion in SCA Services, Inc. v. Morgan, 557 F.2d 110, 117 (7th Cir. 1977). Section 455(a), moreover, is a product of the self-enforcing Code of Judicial Conduct, see Comment, supra note 3, at 236, 260. . United States v. Amerine, 411 F.2d 1130, 1134 (6th Cir. 1969) (interpreting predecessor to current § 455(a)). . The former § 455 provided: Any justice or judge of the United States shall disqualify himself in any case in which he has a substantial interest, has been of" }, { "docid": "11794614", "title": "", "text": "that period. The Judge was accompanied at all times in or about the courtroom by two marshals .... Motion at 4, reprinted in J.A. at 1121. . 28 U.S.C. § 455(a). Prior to its amendment in 1974, section 455 provided in full: Any justice or judge of the United States shall disqualify himself in any case in which he has a substantial interest, has been of counsel, is or has been a material witness, or is so related to or connected with any party or his attorney as to render it improper, in his opinion, for him to sit on the trial, appear, or other proceeding therein. . See United States v. Mirkin, 649 F.2d 78 (1st Cir. 1981); In re International Business Machines Corp., 618 F.2d 923, 929 (2d Cir. 1980); Rice v. McKenzie, 581 F.2d 1114 (4th Cir. 1978); Potashnick v. Port City Constr. Co., 609 F.2d 1101, 1111 (5th Cir. 1980), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1981); Roberts v. Bailar, 625 F.2d 125. 129 (6th Cir. 1980); SCA Servs., Inc. v. Morgan, 557 F.2d 110 (7th Cir. 1977); United States v. Poludniak, No. 80-2133 (8th Cir. Aug. 14, 1981); Wood v. McEwen, 644 F.2d 797, 802 (9th Cir. 1981); United States v. Ritter, 540 F.2d 459 (10th Cir.), cert. denied, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976). . C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3550 (1975); Comment, Disqualification of Federal Judges for Bias or Prejudice, 46 U.Chi.L.Rev. 236, 259 (1978). . Appellants do not argue that the trial judge erred by refusing to transfer the motion for recusal to another judge. In United States v. Haldeman, 559 F.2d 31 (D.C.Cir.1976) (en banc), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977), this court held that un der section 144 and predecessor section 455 the transfer to another judge for decision is “at most permissive.” Id. at 131. See also In re Corrugated Container Antitrust Litigation, 614 F.2d 958, 903 n.9 (5th Cir.), cert. denied, 449 U.S. 888, 101 S.Ct." }, { "docid": "282352", "title": "", "text": "mutual funds. The district judge’s opinion suggests another ground, that a judge should recuse himself whenever a party “asserts a belief that the judge will not be impartial.” Section 455(a) then becomes a form of peremptory challenge against the judge. The statute does not create such a challenge, however. That is the point of limiting disqualification to a case where the judge’s “impartiality might reasonably be questioned.” We held in SCA Services, 557 F.2d at 113 & n. 8, that the 1974 amendments to § 455 abolish any “duty to sit”; a judge need not and should not decide close calls in favor of hearing the case. See also United States v. Haldeman, 559 F.2d 31, 139 n. 360 (D.C.Cir.1976) (en banc), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); United States v. Wolfson, 558 F.2d 59, 63 (2d Cir.1977); H.R. Rep. No. 93-1453, 93d Cong., 2d Sess. 2, 5 (1974), reprinted in 1974 U.S.Code Cong. & Admin.News 6351, 6355; Comment, Disqualification of Federal Judges for Bias or Prejudice, 46 U.Chi.L.Rev. 236, 241-42 (1978). A judge may decide close calls in favor of recusal. But there must first be a close call. As we put it in Suson v. Zenith Radio Corp., 763 F.2d 304, 308-09 n. 2 (7th Cir.1985), a “district judge is ... obligated not to recuse himself without reason just as he is obligated to recuse himself when there is reason.” See also United States v. Baskes, 687 F.2d 165, 170 (7th Cir.1981). A judge who removes himself whenever a party asks is giving that party a free strike, and Congress rejected proposals (now in effect in some states) to allow each party to remove a judge at the party’s option. Automatic disqualification allows the party to manipulate the identity of the decisionmaker and may be no more healthy for the judicial system than is the denial of a borderline motion. At least this is the belief reflected in the existing statutes. And ready recusal, coupled with a rule that requires the judge to whom the case is reassigned to revisit all of" }, { "docid": "22962023", "title": "", "text": "himself because of the appearance of partiality arising from his law clerk’s conduct. The magistrate denied the motion after a hearing because the law clerk “at no time” expressed an opinion or communicated any extrajudicial information to him about the SBA; because she had accepted employment only after the magistrate had made his decision and had written a rough draft of the opinion in this case, and because the law clerk was, in the magistrate’s words, “little more than an amanuensis in th[e] case.” He stated: “I don’t think that any female law clerk is going to give me a lot of input on how to decide a case.” I. The Code of Judicial Conduct, adopted by the Judicial Conference of the United States, states: “A judge shall disqualify himself in a proceeding in which his impartiality might reasonably be questioned....” Code of Judicial Conduct, Canon 3(C)(1), reprinted in 69 F.R.D. 273, 277 (1975). By statute adopted in 1974 that ethical standard was converted into mandate: every justice, judge and magistrate is required to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455 (1976 & Supp. IV 1980). This disqualification may be waived but the judge is forbidden to accept a waiver unless “it is preceded by a full disclosure on the record of the basis for disqualification.” Id. § 455(e) (Supp. IV 1980). The goal of this portion of the disqualification statute is to exact the appearance of impartiality. Potashnick v. Port City Construction Co., 609 F.2d 1101, 1111 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980); E. Thode, Reporter’s Notes to Code of Judicial Conduct 60-61 (1973). It focuses on what is revealed to the parties and the public, as opposed to the existence in fact of any bias or prejudice. Potashnick, 609 F.2d at 1111. A judge should exercise his discretion in favor of disqualification if he has any ques- tion about the propriety of his sitting in a particular case. Id. at 1112. The statute requires the judge to disqualify himself if" }, { "docid": "4068335", "title": "", "text": "and 455. In this case, Defendant properly limits his challenge to section 455, as section 144 is clearly inapplicable since it applies only to district courts and requires a demonstration of personal bias and prejudice in fact, rather than a mere appearance of partiality. United States v. Chantal, 902 F.2d 1018, 1023 (1st Cir.1990). Section 455, on-the other hand, applies to any justice, judge or magistrate of the United States and is based on an objective standard requiring a judge to recuse himself whenever there is even the appearance of judicial bias. United States v. Cowden, 545. F.2d 257, 265 (1st Cir.1976); see also In re Martínez-Cátala, 129 F.3d 213 (1st Cir.1997). Section 455, unlike section 144, does not stipulate a formal procedure, such as the filing of. an affidavit, by which claims arising under it must be raised. Instead, section 455 places the duty directly upon the judge to evaluate his own actions. United States v. Heldt, 668 F.2d 1238, 1271 (D.C.Cir.1981); 13A Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, FedeRal PRACTICE and PROCEDURE § 3550 at 629. Section 455 also does not require the judge to accept the allegations of the motion as true. Phillips v. Joint Legislative Committee on Performance and Expenditure Review, 637 F.2d 1014, 1019 n. 6 (5th Cir.1981). Rather, the proper test to be, applied is whether a reasonable person with knowledge of all of the circumstances might question the judge’s impartiality. In re Beard, 811 F.2d 818, 827 (4th Cir.1987); Phillips, 637 F.2d at 1019. The purpose of the disqualification statute is to guard against personal, extrajudicial bias or the appearance of partiality arising out of such bias. See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) (stating that -section 455(a) is engineered to “promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.”); see also Cowden, 545 F.2d at 265 (citing H.Rep. No. 1453, 93rd Cong., 2d Sess., 1974 U.S.Code Cong. & Admin.News p. 6355); Davis v. Board of School Comm’rs of Mobile County, 517 F.2d" }, { "docid": "11119802", "title": "", "text": "result, actual disqualifications under section 144 have been rare. See 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3541 (1975). The effective scope of section 455 is much broader. There are no express procedural hurdles and, while subsection (b)(1) requires recusal if the judge has actual personal bias or prejudice or extrajudicial knowledge of disputed evidentiary facts, subsection (a) requires recusal merely if the circumstances are such that the judge’s “impartiality might be reasonably questioned.” See United States v. Ritter, 540 F.2d 459, 462 (10th Cir.) cert. denied, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976). Under section 455(a), the judge is under a continuing duty to ask himself what a reasonable person knowing all the relevant facts would think about his impartiality. Roberts v. Bailar, 625 F.2d 125, 129 (6th Cir.1980). “If there is a reasonable factual basis for doubting the judge’s impartiality, ... [he] should disqualify himself .... ” 625 F.2d at 129, citing H.R.Rep. No. 1453, 93d Cong., 2d Sess. (1974), U.S.Code Cong. & Admin.News, p. 6351. The trial court based its denial of Mr. Hines’ section 455 motion upon its findings that the motion was untimely and not accompanied by a proper certificate of counsel. The trial court also held that, in any event, the judge did not have actual personal bias or prejudice and, under the circumstances, a reasonable man would not question the impartiality of the judge. Because we do not accept the proposition that section 144 procedural requirements are impliedly applicable to a section 455 motion, we hold that it was error for the trial judge to deny the motion as procedurally defective for want of a proper certificate. As stated by the court in Roberts v. Bailar, 625 F.2d 125 (6th Cir.1980): Neither the text nor the legislative history of § 455(a) contain any suggestion that the procedures of § 144 are applicable to disqualification under § 455(a) .... In fact, Congress disregarded suggestions that requirements such as timeliness apply to disqualification under § 455 .... Section 455(a), moreover, is a product of the self-enforcing" }, { "docid": "5761338", "title": "", "text": "confidence in the impartiality of the judiciary by saying, in effect, if there is a reasonable factual basis for doubting the judge’s impartiality he should disqualify himself.” H.R.Rep. No. 93-1453, 93d Cong.,. 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 6351, 6355 (“House Report”). Section 455(a) was designed to abolish the so-called “duty-to-sit” rule, whereby a judge faced with close recusal questions was required to resolve them in favor of remaining on the case. See generally 13A Wright, Miller & Cooper, Federal Practice and Procedure § 3549, at 609-12 (2d ed. 1984). The test under § 455(a) therefore turns not only on whether the judge is actually biased or impartial, but also on whether to a reasonable observer the judge’s impartiality would be open to question. Moreover, the reasonable observer is assumed to be possessed of all of the relevant facts and circumstances bearing on the question. See In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1313 (2d Cir.1988), cert. denied, 490 U.S. 1102, 109 S.Ct. 2458, 104 L.Ed.2d 1012 (1989); Gilbert v. City of Little Rock, 722 F.2d 1390, 1399 (8th Cir.1983) cert. denied, 466 U.S. 972, 104 S.Ct. 2347, 80 L.Ed.2d 820 (1984). Section 455(a) as presently drafted was amended in 1974 to conform to Canon 3 C(l) of the ABA Code of Judicial Conduct. See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 858 n. 7, 108 S.Ct. 2194, 2201 n. 7, 100 L.Ed.2d 855 (1988). Canon 3 C(l) provides in pertinent part as follows: A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has a personal bias or prejudice concerning a party ... In amending § 455(a), however, Congress warned of a potential for abuse: [I]n assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possibility that those who would question his impartiality are in fact seeking to avoid the consequences of his expected adverse decision. Disqualification for lack of impartiality must have a reasonable basis. Nothing in this" }, { "docid": "22457509", "title": "", "text": "two statutes in United States v. dander, 584 F.2d 876 (9th Cir. 1978), and held that the decisions interpreting section 144 are also controlling in the interpretation of the bias and prejudice language in section 455(b)(1). Id. at 882; see In re International Business Machines Corp., 618 F.2d 923 (2d Cir. 1980); United States v. Haldeman, 559 F.2d 31, 132 (D.C. Cir. 1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); United States v. Hall, 424 F.Supp. 508, 533 (N.D.Okl.1975), aff’d, 536 F.2d 313 (10th Cir. 1976); 13 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3542, at 345-46 (1975). A second point we made in dander concerned the distinction between two subsections of section 455. We stated: “It would be incorrect as a matter of statutory construction to interpret section 455(a) as setting up a different test for disqualification for bias or prejudice from that in section 455(b)(1).” 584 F.2d at 882. We interpret this to mean that the standard for determining the appearance or fact of the particular grounds for disqualification is the same, but not that the reach of the two sections is in all cases coextensive. The standard for measuring the grounds of disqualification is similar, but the sections reach different factual contexts. dander does not undercut the recognition that there may be cases within subsection (a) that are not within subsection (b); and we think this, must be so or subsection (e), which allows waiver of disqualification under the former subsection but not the latter, would be without meaning. We need not examine for purposes of this case the comparative reach of the two sections, other than to suggest that subsection (a) is designed to cover contingencies not foreseen by the draftsmen, who set out specific grounds for disqualification under subsection (b). This interpretation is consistent with the legislative history, which describes subsection (a) as a “general, or catch-all, provision.” H.Rep. No. 1453, 93rd Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Admin.News 6351, 6354. Subsection (a) was described as establishing an objective standard which required" }, { "docid": "11119801", "title": "", "text": "amended in 1974 for the purpose of enhancing public confidence in the impartiality of the federal judicial system. S.Rep. No. 419, 93d Cong., 1st Sess. 5 (1973). Prior to 1974, section 455 did not reach questions of bias or prejudice, but merely provided for disqualification because of specified relationships to a case or because of a substantial interest in the case. See 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3541 (1975). Prior to the 1974 amendment, questions of judicial bias or prejudice were raised under 28 U.S.C. § 144. By the terms of section 144, a district court judge must recuse himself in. any proceeding upon the filing of a timely and sufficient affidavit of personal bias or prejudice, even if he has no actual personal bias or prejudice. However, in practice, the procedural requirements of this statute, which are quite specific, have been strictly construed. United States v. Womack, 454 F.2d 1337 (5th Cir.1972), cert. denied, 414 U.S. 1025, 94 S.Ct. 450, 38 L.Ed.2d 316 (1973). As a result, actual disqualifications under section 144 have been rare. See 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3541 (1975). The effective scope of section 455 is much broader. There are no express procedural hurdles and, while subsection (b)(1) requires recusal if the judge has actual personal bias or prejudice or extrajudicial knowledge of disputed evidentiary facts, subsection (a) requires recusal merely if the circumstances are such that the judge’s “impartiality might be reasonably questioned.” See United States v. Ritter, 540 F.2d 459, 462 (10th Cir.) cert. denied, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976). Under section 455(a), the judge is under a continuing duty to ask himself what a reasonable person knowing all the relevant facts would think about his impartiality. Roberts v. Bailar, 625 F.2d 125, 129 (6th Cir.1980). “If there is a reasonable factual basis for doubting the judge’s impartiality, ... [he] should disqualify himself .... ” 625 F.2d at 129, citing H.R.Rep. No. 1453, 93d Cong., 2d Sess. (1974), U.S.Code Cong. & Admin.News," }, { "docid": "11894272", "title": "", "text": "6351, 6353-54. The new § 455 also adopted some of the language from § 144, and this circuit has held that “substantively the two statutes are quite similar, if not identical.” Phillips v. Joint Legislative Committee, 637 F.2d 1014, 1019 & n.6 (5th Cir. 1981); see Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976) (Section 144 and new section 455 are to be construed in pari materia and same substantive test of bias would be applied.). Two things about the 1974 version of § 455 are worthy of note. The first is that the statute now contains a waiver provision for situations falling within the general provisions of § 455(a) if full disclosure is made, but waiver is not possible if the situation falls within one of the specific categories listed in § 455(b). The second point is that even after the 1974 amendment, § 455 still contains no explicit procedural requirements. The legislative history of the 1974 amendment reveals that the Justice Department suggested that the new statute should include some explicit limitation of time similar to § 144 “to prevent applications of disqualification from being filed near the end of a trial when the underlying facts were known long before,” H.R.Rep.No.93-1453, 93d Cong., 2d Sess. 9, reprinted in [1974] U.S.Code Cong. & Ad.News 6351, 6358. However, Congress did not, for reasons of its own, incorporate this recommendation into the statute. One court has read this fact as proof that Congress did not intend any timeliness requirements for § 455. SCA Services, Inc. v. Morgan, 557 F.2d 110, 117 (7th Cir. 1977). However, prior to the 1974 amendment courts had generally held that a timely objection under the old § 455 was necessary. E.g., Adams v. United States, 302 F.2d 307, 309 (5th Cir. 1962); 13 Wright, Miller & Cooper Federal Practice and Procedure: Civil § 3552 at 382 n.l and cases cited therein. Thus “Congress’ failure to act could as easily have been the result of a belief that" }, { "docid": "22962024", "title": "", "text": "himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455 (1976 & Supp. IV 1980). This disqualification may be waived but the judge is forbidden to accept a waiver unless “it is preceded by a full disclosure on the record of the basis for disqualification.” Id. § 455(e) (Supp. IV 1980). The goal of this portion of the disqualification statute is to exact the appearance of impartiality. Potashnick v. Port City Construction Co., 609 F.2d 1101, 1111 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980); E. Thode, Reporter’s Notes to Code of Judicial Conduct 60-61 (1973). It focuses on what is revealed to the parties and the public, as opposed to the existence in fact of any bias or prejudice. Potashnick, 609 F.2d at 1111. A judge should exercise his discretion in favor of disqualification if he has any ques- tion about the propriety of his sitting in a particular case. Id. at 1112. The statute requires the judge to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality. Id. See Fredonia Broadcasting Corp. v. RCA Corp., 569 F.2d 251 (5th Cir.), cert. denied, 439 U.S. 859, 99 S.Ct. 177, 58 L.Ed.2d 167 (1978); Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv. L.Rev. 736, 745 (1973). But knowledge of all the facts implies only knowledge of those that are objectively ascertainable. The term cannot, as suggested by counsel, extend to what happens in the judge’s chambers or to his actual virtue because, were that so, the test would be not the appearance of impartiality but the absence of actual prejudice. II. Law clerks are not merely the judge’s errand runners. They are sounding boards for tentative opinions and legal researchers who seek the authorities that affect decision. Clerks are privy to the judge’s thoughts in a way that neither parties to the lawsuit nor his most intimate family members may be. Fredonia Broadcasting Corp., 569 F.2d at 256. We agree with the Sixth Circuit that the clerk" }, { "docid": "6660616", "title": "", "text": "“[t]he use of the term ‘subject matter’ suggests that this provision of the statute will be most significant in in rem proceedings.” The court held that a judge who owned stock in other participants in a federal Entitlements Program administered by the Department of Energy but who did not have stock in the refiner whose claims were at issue did not have a financial interest in the subject matter of the litigation. We hold that a judge presiding over a criminal action who holds stock in a corporate victim of the crime does not have a “financial interest in the subject matter in controversy.” Defendant argues that even if disqualification was not required under section 455(b)(4), the judge should have disqualified himself under section 455(a) because “his impartiality might reasonably be questioned.” Congress designed this general standard “to promote public confidence in the impartiality of the judicial process by saying, in effect, if there is a reasonable factual basis for doubting the judge’s impartiality, he should disqualify himself and let another judge preside over the case.” House Report at 5, reprinted in 1974 U.S. Code Cong. & Ad.News at 6354-55. The focus under the statute is on the objective appearance of bias, rather than bias-in-fact. Potashnick v. Port City Construction Co., 609 F.2d 1101, 1111 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980); Note, Judicial Disqualification in the Federal Courts: Maintaining an Appearance of Justice Under 28 U.S.C. § 455, 1978 U.Ill.L.F. 863, 871; Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv.L.Rev. 736, 745 (1973). We recognize that there have been cases in which appellate courts have held that a trial judge’s financial interest in the victim of a crime did not require disqualification in the subsequent criminal proceeding. In United States v. Ravich, 421 F.2d 1196, 1205-06 (2d Cir.), cert. denied, 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66 (1970), the court held that disqualification in such a situation was left to the conscience of the particular judge. In United States v. Sellers, 566 F.2d 884, 887 (4th" }, { "docid": "23138453", "title": "", "text": "3, at § 3550; Comment, supra note 3, at 260. . Id. Neither the text nor the legislative history of § 455(a) contain any suggestion that the procedures of § 144 are applicable to disqualification under § 455(a). See H.R.Rep.No.93-1453, 93d Cong., 2d Sess. (1974), reprinted in [1974] U.S.Code Cong. & Admin.News at 6351; C. Wright, A. Miller & E. Cooper, supra note 3, at § 3550; Comment, supra note 3, at 260. In fact, Congress disregarded suggestions that requirements such as timeliness apply to disqualification under § 455. See generally the discussion in SCA Services, Inc. v. Morgan, 557 F.2d 110, 117 (7th Cir. 1977). Section 455(a), moreover, is a product of the self-enforcing Code of Judicial Conduct, see Comment, supra note 3, at 236, 260. . United States v. Amerine, 411 F.2d 1130, 1134 (6th Cir. 1969) (interpreting predecessor to current § 455(a)). . The former § 455 provided: Any justice or judge of the United States shall disqualify himself in any case in which he has a substantial interest, has been of counsel, is or has been a material witness, or is so related to or connected with any party or his attorney as to render it improper, in his opinion, for him to sit on the trial, appeal, or other proceeding therein. . See, e. g., United States v. Haldeman, 559 F.2d 31, 139 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977) (applying pre-1974 statute); Kinnear-Weed Corp. v. Humble Oil & Refining Corp., 441 F.2d 631, 635 (5th Cir.), cert. denied, 404 U.S. 941, 92 S.Ct. 285, 30 L.Ed.2d 255 (1971); Weiss v. Hunna, 312 F.2d 711, 714 (2d Cir.), cert. denied, 374 U.S. 853, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963). . See, e. g., Edwards v. United States, 334 F.2d 360, 362 n.2 (5th Cir. 1964), cert. denied, 379 U.S. 1000, 85 S.Ct. 721, 13 L.Ed.2d 702 (1965) (judges have a “duty to sit”). . See House Report, supra note 8, at 6, reprinted in [1974] U.S.Code Cong. & Admin. News at 6355 (amendment to § 455 “is designed" }, { "docid": "282351", "title": "", "text": "a decision on the value of securities held through a mutual fund. The district judge nonetheless thought that his impartiality might reasonably be questioned within the meaning of § 455(a). To the extent this introduces through the back door an inquiry into the substantiality of the effect on the value of assets held by the mutual fund, it is an inappropriate use of § 455(a). This inquiry would prevent § 455(d)(4)(i) from acting as a safe harbor, once again calling on judges to decide whether a financial interest is sufficiently substantial to require disqualification. Moreover, § 455(a) requires disqualification only when a judge’s decision might “reasonably” be questioned. The inquiry is objective, from the point of view of a reasonable person with access to all of the facts. See Pepsico and Union Carbide. See also, e.g., United States v. DeLuna, 763 F.2d 897, 907 (8th Cir.), cert. denied, — U.S. —, 106 S.Ct. 382, 88 L.Ed.2d 336 (1985). A reasonable person would not question the impartiality of a judge who holds nothing but well diversified mutual funds. The district judge’s opinion suggests another ground, that a judge should recuse himself whenever a party “asserts a belief that the judge will not be impartial.” Section 455(a) then becomes a form of peremptory challenge against the judge. The statute does not create such a challenge, however. That is the point of limiting disqualification to a case where the judge’s “impartiality might reasonably be questioned.” We held in SCA Services, 557 F.2d at 113 & n. 8, that the 1974 amendments to § 455 abolish any “duty to sit”; a judge need not and should not decide close calls in favor of hearing the case. See also United States v. Haldeman, 559 F.2d 31, 139 n. 360 (D.C.Cir.1976) (en banc), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); United States v. Wolfson, 558 F.2d 59, 63 (2d Cir.1977); H.R. Rep. No. 93-1453, 93d Cong., 2d Sess. 2, 5 (1974), reprinted in 1974 U.S.Code Cong. & Admin.News 6351, 6355; Comment, Disqualification of Federal Judges for Bias or Prejudice, 46 U.Chi.L.Rev." }, { "docid": "5006763", "title": "", "text": "same judge for over seven years, and has been in trial for four years. The obligation to continue presiding over it weighs especially heavily against disqualification. The court will not disqualify itself pursuant to section 455 for all the reasons stated above. The court would reach the same result under section 455 as amended. Section 455(b)(1) uses the same language as section 144 — “personal bias or prejudice” — and the two sections have been read in pari materia. See United States v. Wolfson, 558 F.2d 59, 62 (2d Cir. 1977); Wright, Miller & Cooper, Federal Practice and Procedure § 3542 at 345-46 (1975). Section 455(a) creates a broader standard for disqualification in two respects. First, it eliminates the duty to sit. Second, it sets up an objective standard of disqualification — “in [a] proceeding in which his [the judge’s] impartiality might reasonably be questioned” — in place of the earlier version’s subjective standard set forth in the phrase “in his [the judge’s] opinion.” H.R.Rep.No. 93-1453, 93d Cong., 2d Sess. 4-5, reprinted in 3 [1974] U.S. Code Cong. & Admin.News, pp. 6351, 6354 — 55. The test under this objective standard is “whether facts have been presented that, assuming their truth, would lead a reasonable person to infer that bias or.prejudice existed, thereby foreclosing impartiality of judgment.” United States v. Corr, 434 F.Supp. 408, 412-13 (S.D.N.Y.1977) (citation omitted). The Second Circuit has recognized that amended section 455(a) creates “ ‘a greater flexibility in determining whether disqualification is warranted in particular situations.’ ” United States v. Wolfson, 558 F.2d at 63, (quoting United States v. Ritter, 540 F.2d 459, 462 (10th Cir.), cert, denied, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976) ). Yet the amendment of section 455 does not alter the absolute requirement that bias or prejudice be extrajudicial to disqualify a judge. As was explained in Davis v. Board of School Commissioners, 517 F.2d 1044, 1052 (5th Cir. 1975), a disqualification motion should be decided “on the basis of conduct extra-judicial in nature as distinguished from conduct within a judicial context. This means that we give" }, { "docid": "4986084", "title": "", "text": "employment as a law student librarian would cause a reasonable person to “harbor a doubt as to the Judge’s impartiality.” Potashnick v. Port City Construction Co., 609 F.2d 1101, 1111 (5th Cir.1980), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980). According to the Report of the House Judiciary Committee, the 1974 amendments to § 455 were designed to bring the statutory grounds for disqualification into conformity with Canon 3 of the Code of Judicial Conduct which requires a judge to disqualify himself if there is a reasonable factual basis for doubting the judge’s impartiality. H.R.Rep. No. 93-1453, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.Code Cong. & Admin.News, pp. 6351, 6352-55. The report noted, however, that “[Disqualification must have a reasonable basis. Nothing in this proposed legislation should be read to warrant the transformation of a litigant’s fear that a judge may decide a question against him into a ‘reasonable fear’ that the judge will not be impartial.” Id. Judge demon’s involvement in Lee v. Macon, as well as the other noted adversary proceedings, does not evidence any basis for imputing a lack of impartiality or appearance of bias on the part of Judge Clemon, but rather, indicates the possibility of a particular judicial leaning. Allegations of such predispositions based upon background alone is insufficient to support disqualification. See Phillips, 637 F.2d at 1021; Blank v. Sullivan and Cromwell, 418 F.Supp. at 4; Pennsylvania v. Local Union 452, International Union of Operating Engineers, 388 F.Supp. at 159. The Afro-American Claim Auburn amended its Motion to Disqualify to include the allegation that Judge demon’s representation of plaintiffs in the Afro-American Association of the University of Alabama v. Bryant requires disqualification under § 455. The Afro-American action was filed on July 2, 1969 and was dismissed with prejudice on May 10, 1971. The complaint alleged that the University of Alabama was failing to recruit black athletes and was failing to award them scholarships. The plaintiffs charged violation of equal protection under the Fourteenth Amendment and requested injunctive relief to require the university to recruit black athletes and" } ]

[ { "docid": "22535337", "title": "", "text": "finding of liability in this case, and the Commission’s demonstrated willingness to tailor remedies to accommodate the exercise of religious freedoms, there is plainly no “reasonable threat” that an overly intrusive remedy will trench on appel-lees’ First Amendment rights. To hold otherwise would require the District Court to detail the constitutionally permissible range of the Commission’s sentencing discretion in advance of any facts regarding the School’s discriminatory conduct or any explanation by the Commission justifying the relief it might fashion. Either or both of these items of information would inform the First Amendment analysis and might prove decisive in determining the constitutionality of the Commission’s hypothesized remedy. 1 do not agree with the majority that the doctrine of abstention associated with Younger v. Harris, 401 U. S. 37 (1971), required the District Court to dismiss appellees’ complaint. That disposition would presumably deny the School a federal forum to adjudicate the constitutionality of a provisional administrative remedy, such as reinstatement pending resolution of the complainant’s charges, even though the constitutional issues have become ripe for review by the Commission’s entry of a coercive order and the Commission refuses to address the merits of the constitutional claims. Younger abstention has never been applied to subject a federal-court plaintiff to an allegedly unconstitutional state administrative order when the constitutional challenge to that order can be asserted, if at all, only in state-court judicial review of the administrative proceeding. See Steffel v. Thompson, 415 U. S., at 462 (holding that Younger abstention is inappropriate when no state-court proceeding “is pending at the time the federal complaint is filed,” because in that circumstance “federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system”; it cannot “be interpreted as reflecting negatively upon [a] state court’s ability to enforce constitutional principles”; and the absence of a pending state-court proceeding deprives “the federal plaintiff [of] a concrete opportunity to vindicate his constitutional rights”). See also Middlesex County Ethics Committee v. Garden State Bar Assn., 457 U. S. 423, 437 (1982) (requiring abstention where “an adequate state forum for all relevant issues" } ]

[ { "docid": "19213012", "title": "", "text": "On August 9,1993, the Hawaii Supreme Court upheld the revocations of two of the three plaintiffs and rejected their constitutional challenges. Kernan v. Tanaka, 75 Haw. 1, 856 P.2d 1207 (1993). On October 7, 1991, while state proceedings were pending, the thirteen plaintiffs filed this 42 U.S.C. § 1983 action challenging the constitutionality of Hawaii’s administrative revocation statute. The district court dismissed the action on April 28, 1992. The plaintiffs timely appeal. II Eight of the plaintiffs in this case had their revocations rescinded during the administrative revocation proceedings or by the state court during judicial review of the administrative proceedings. We agree with the district court that these plaintiffs’ claims are moot. See Sample, 771 F.2d at 1338. The plaintiffs nevertheless argue that their claims are not moot because a declaratory judgment would expunge the damage to their reputations. This argument is meritless. These plaintiffs already received a declaration in state court that their revocations were improper. The plaintiffs also argue that their claims are not moot because they are capable of repetition yet evading review. This exception applies if two conditions are satisfied: the challenged action is too short to be fully litigated before its cessation, and there is a reasonable expectation that the complaining party will be subjected to the same action again. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975). These conditions do not exist here. III The remaining plaintiffs contend that the district court should not have abstained under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), from hearing their due process challenge to the administrative revocation statute because the statute does not provide a timely opportunity for them to raise constitutional claims. Under the Younger abstention doctrine, a federal court in most circumstances may not interfere with pending state criminal or civil proceedings, including state administrative proceedings. Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986); Ronwin v. Dunham, 818 F.2d 675, 677-78 (8th Cir.1987) (administrative proceeding regarding suspension of driver’s license" }, { "docid": "3731520", "title": "", "text": "1983, alleging that the Commissioner’s actions and the regulatory scheme itself violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment as well as the Commerce Clause of Article I, section 8 of the United States Constitution. This Court has subject matter jurisdiction over this matter under 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e)(1). Venue is appropriate in this forum under 28 U.S.C. § 1391(b) and 29 U.S.C. § 1132(e)(2). Discussion The Commissioner moves for judgment on the pleadings under the doctrine of abstention announced in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Younger is an exception to the usual rule that a federal court’s obligation to adjudicate claims within its jurisdiction is “virtually unflagging.” Deakins v. Monaghan, 484 U.S. 193, 203, 108 S.Ct. 523, 530, 98 L.Ed.2d 529 (1988); see Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). The Younger exception is based on strong policies of federalism and comity, namely, avoiding federal interference in pending state proceedings enforcing important state public policy. See Younger, 401 U.S. at 44, 91 S.Ct. at 750; see also Middle-sex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982). The Supreme Court has set out a three-part test for determining whether Younger abstention' is appropriate. Middle-sex, 457 U.S. at 423, 102 S.Ct. at 2515. Abstention is appropriate if (1) there are ongoing state proceedings, (2) the proceedings implicate important state interests, and (3) there is an adequate opportunity in the state proceedings to raise federal questions. Id. at 432, 102 S.Ct. at 2521; see also Yamaha Motor Corp. U.S.A. v. Riney, 21 F.3d 793, 797 (8th Cir.1994). If any of the three prongs is not satisfied, abstaining on the grounds of Younger is inappropriate. See Yamaha Motor Corp., 21 F.3d at 798 n. 11. State “proceedings” must be judicial in nature to satisfy the first prong of the Middlesex test. The state administrative proceedings that have been commenced in" }, { "docid": "8793638", "title": "", "text": "April 15,1983, appellees filed the instant action in federal court seeking, in part, a declaratory judgment on their constitutional claim. Appellants argued that the district court should abstain from interfering in ongoing state proceedings and should dismiss the action, relying in part on the Younger abstention doctrine. The district court refused to abstain and dismiss the complaint as required by Younger, and proceeded to grant summary judgment in favor of the appellees. Beltran v. California, 617 F.Supp. 948 (S.D.Cal.1985). II We review de novo the district court’s refusal to abstain under Younger. Polykoff v. Collins, 816 F.2d 1326, 1332 (9th Cir.1987); Fresh Int’l Corp. v. Agricultural Labor Relations Board, 805 F.2d 1353, 1356 & n. 2 (9th Cir.1987). Younger abstention embodies “a strong federal policy against federal-court interference with pending state judicial proceedings, absent extraordinary circumstances.” Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431, 102 S.Ct. 2515, 2520, 73 L.Ed.2d 116 (1982). In Fresh Int’l, 805 F.2d at 1357-58, we summarized the requirements of Younger abstention: Under the three-pronged test announced by the Supreme Court in Middlesex and applied in [Ohio Civil Rights Comm’n v.] Dayton [Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986)], abstention is appropriate in favor of a state proceeding if (1) the state proceedings are ongoing; (2) the proceedings implicate important state interests; and (3) the state proceedings provide an adequate opportunity to raise federal questions. (citations omitted). This case meets each requirement. Consequently, we hold that the district court erred in refusing to abstain. We consider each criterion in turn. A It is undisputed that ALRB and state appellate court proceedings concerning ap-pellees’ constitutional claim were ongoing at the time the federal complaint was filed. Further, the appeals of the ALRB’s decisions respecting the appellees were still ongoing when appellants asked the district court to abstain on the basis of Younger. Appellees’ only argument in this regard is that the ongoing state proceedings “did not involve the constitutionality of § 1158(c).” Brief for Appellees at 37. This contention, however, is without merit. At the very" }, { "docid": "17233094", "title": "", "text": "and that the existence of fraud and conspiracy between DHHR and the Board alleviates any defense raised by defendants. As set forth in plaintiffs complaint, DHHR filed a complaint against plaintiff with the Board. The Board has initiated an investigation stemming from that complaint which may result in the imposition of administrative charges against the plaintiff, complete with an evidentiary hearing and appellate rights. W. Va.C.S.R. § 11-3-1 et seq.; W. Va.Code § 29A-5-1, et seq. Since the administrative proceedings are still pending, the Court is of the opinion that it should abstain from hearing this action at this time. In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669,(1971), the Supreme Court held that federal courts should not enjoin a state court criminal proceeding absent extraordinary circumstances. Younger applies not only to ongoing State civil proceedings, but to State administrative proceedings as well. Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986); Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). The Fourth Circuit recognized the applicability of the Younger abstention doctrine to administrative proceedings in Martin Marietta v. Maryland Com’n on Human Rel, 38 F.3d 1392 (4th Cir.1994). Interpreting the Younger decision, the Court stated: Younger serves as an exception to the traditional rule of the federal court should exercise jurisdiction conferred on them by statute. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976) In Younger and its progeny, the Supreme Court generally has found abstention appropriate if the following three-pronged test has been met: 1/ there are ongoing state Judicial proceedings; 2/ the proceedings implicate important state interests; and 3/ there is an adequate opportunity to raise federal claims in the state proceedings. Middlesex, 457 U.S. at 432, 102 S.Ct. at 2521. The pending matter before the state agencies meets the three-part test. There are ongoing state proceedings before the Board of Medicine which vindicate an important state interest. Phillips v." }, { "docid": "22928752", "title": "", "text": "access. The district court dismissed each case on the ground that Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), required abstention. II. Abstention from Granting Injunctive and Declaratory Relief A. Requirements for Abstention Younger and its progeny generally direct federal courts to abstain from granting injunctive or declaratory relief that would interfere with pending state judicial proceedings. Id. at 40-41, 91 S.Ct. at 748-49; Samuels v. Mackell, 401 U.S. 66, 73, 91 S.Ct. 764, 768, 27 L.Ed.2d 688 (1971) (extending Younger to declaratory judgments). Absent “extraordinary circumstances”, abstention in favor of state judicial proceedings is required if the state proceedings (1) are ongoing, (2) implicate important state interests, and (3) provide the plaintiff an adequate opportunity to litigate federal claims. See Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982). Each prerequisite is satisfied in each of these cases. 1. Ongoing State Proceedings Each appellant faced ongoing disciplinary proceedings when he brought suit in federal court. See Beltran v. State of California, 871 F.2d 777, 782 (9th Cir.1988) (stating that abstention requires proceedings to be ongoing at the time plaintiff initiates federal proceedings). Notices to Show Cause had been directed to Hirsh and Espinoza, and the California Supreme Court had not yet filed an order regarding the Bar Court’s recommendations with respect to Perry and Server. See Flangas v. State Bar of Nevada, 655 F.2d 946, 949 (9th Cir.1981) (holding proceedings were ongoing where state Board of Bar Governors had recommended discipline but final binding action had yet to be taken by the Nevada Supreme Court). The ongoing proceedings were judicial in character. Under California’s discipline system, the Hearing Department conducts a formal hearing and makes findings, the Review Department conducts a de novo review of those findings, and the Supreme Court retains inherent jurisdiction over the proceedings, including power to review the Bar Court’s findings. Appellants point to no relevant distinction between this procedure and that held to be judicial in nature in Middlesex, 457 U.S. at 433-34, 102 S.Ct. at 2522;" }, { "docid": "19213013", "title": "", "text": "evading review. This exception applies if two conditions are satisfied: the challenged action is too short to be fully litigated before its cessation, and there is a reasonable expectation that the complaining party will be subjected to the same action again. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975). These conditions do not exist here. III The remaining plaintiffs contend that the district court should not have abstained under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), from hearing their due process challenge to the administrative revocation statute because the statute does not provide a timely opportunity for them to raise constitutional claims. Under the Younger abstention doctrine, a federal court in most circumstances may not interfere with pending state criminal or civil proceedings, including state administrative proceedings. Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986); Ronwin v. Dunham, 818 F.2d 675, 677-78 (8th Cir.1987) (administrative proceeding regarding suspension of driver’s license for speeding). Abstention is appropriate in favor of state proceedings if (1) the state proceedings are ongoing, (2) the proceedings implicate important state interests, and (3) the state proceedings provide the plaintiff an adequate opportunity to litigate federal constitutional questions. Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982); accord Fresh Int'l Corp. v. Agricultural Labor Relations Bd., 805 F.2d 1353, 1357-58 (9th Cir.1986). If these three circumstances exist, then “a district court must dismiss the federal action ... [and] there is no discretion to grant injunctive relief.” Fresh Int’l Corp., 805 F.2d at 1356 (citing Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 816 n. 22, 96 S.Ct. 1236, 1245, 47 L.Ed.2d 483 (1976)). If, however, the plaintiff can show that the state proceedings were instituted in bad faith, or if other extraordinary circumstances exist, then the federal court should not abstain. Younger, 401 U.S. at 53-54, 91 S.Ct. at 755. For example, if a statute “flagrantly and patently”" }, { "docid": "10072830", "title": "", "text": "the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of States. Id. at 44, 91 S.Ct. at 750-51. Although Younger dealt with an injunction against a state criminal proceeding, it has since been recognized that the concern for comity and federalism is equally applicable to certain civil proceedings in which important state interests are implicated. Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) (administrative civil rights proceeding); Middlesex County Ethics Committee v. Garden State Bar Ass’n., 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (state bar disciplinary hearing); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (state nuisance action); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (civil contempt proceeding); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (state welfare proceeding); Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979) (child custody proceeding). Thus, the fact that this is a civil proceeding does not necessarily bar the application of the Younger doctrine. The Younger doctrine is properly raised in a motion to dismiss for failure to state a claim upon which relief can be granted, Kitchens v. Bowen, 825 F.2d 1337, 1339 (9th Cir.1987). Where the doctrine is applicable, abstention is required if: (1) there are pending state judicial proceedings; (2) the state proceedings implicate important state interests; and (3) the state proceedings provide an adequate opportunity to raise federal questions. Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982); Fresh International Corp. v. Agricultural Labor Relations Board, 805 F.2d 1353, 1357-8 (9th Cir.1986). When these criteria are met, “a district court must dismiss the federal action ... [and] there is no discretion to grant injunctive relief.” Juidice v. Vail, 430 U.S. 327, 337, 97 S.Ct. 1211, 1218, 51" }, { "docid": "7608785", "title": "", "text": "(1994) and reverse. DISCUSSION The threshold issue is whether the district court erred in refusing to abstain. We review de novo the district court’s refusal to abstain under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). See Gartrell Constr. Inc. v. Aubry, 940 F.2d 437, 441 (9th Cir.1991). Based on the notion of comity, Younger and its progeny “espouse a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances.” Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 431, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). “Younger is an exception to the usual rule that federal courts should exercise the jurisdiction conferred on them by statute.” Gartrell, 940 F.2d at 441. Originally applicable to state criminal proceedings, the doctrine has been extended to state civil proceedings where important state interests are involved. See Middlesex County Ethics Committee, 457 U.S. at 432. Thus, under Younger a federal court should abstain if “(1) there are ongoing state judicial proceedings, (2) the proceedings implicate important state interests, and (3) there is an adequate opportunity in the state proceedings to raise federal questions.” Gartrell, 940 F.2d at 441 (citing Middlesex, 457 U.S. at 432). The district court correctly found that state judicial proceedings were pending. Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 238, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984), is distinguishable because, as the Court pointed out in rejecting the Younger abstention argument in that case, state judicial proceedings had not been initiated at the time proceedings of substance took place in federal court. See also Polykoff v. Collins, 816 F.2d 1326, 1332 (9th Cir.1987) (Younger abstention appropriate where state court complaint was filed two days before federal court hearing on a motion for preliminary injunction); Kitchens v. Bowen, 825 F.2d 1337, 1341 (9th Cir.1987) (“[T]he critical question is ... whether ‘the state proceedings were underway before the initiation of the federal proceedings.’ ”) (quoting Fresh Int’l Corp. v. Agricultural Labor Relations Bd., 805 F.2d 1353, 1358 (9th Cir.1986)). The district court declined to abstain, however, holding that the" }, { "docid": "10072831", "title": "", "text": "v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979) (child custody proceeding). Thus, the fact that this is a civil proceeding does not necessarily bar the application of the Younger doctrine. The Younger doctrine is properly raised in a motion to dismiss for failure to state a claim upon which relief can be granted, Kitchens v. Bowen, 825 F.2d 1337, 1339 (9th Cir.1987). Where the doctrine is applicable, abstention is required if: (1) there are pending state judicial proceedings; (2) the state proceedings implicate important state interests; and (3) the state proceedings provide an adequate opportunity to raise federal questions. Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982); Fresh International Corp. v. Agricultural Labor Relations Board, 805 F.2d 1353, 1357-8 (9th Cir.1986). When these criteria are met, “a district court must dismiss the federal action ... [and] there is no discretion to grant injunctive relief.” Juidice v. Vail, 430 U.S. 327, 337, 97 S.Ct. 1211, 1218, 51 L.Ed.2d 376 (1977); Fresh, supra at 1356. These authorities would probably mandate abstention here if the City’s characterization of the Club’s complaint were correct. See Ohio Civil Rights Commission, supra. However, the Club is not seeking a stay of the state proceedings as such, but is seeking to enjoin the City from enforcing the ordinance. Although the City has suggested that the relief sought by the Club is tantamount to an injuntion against the state proceedings, the court disagrees. If the Club were attempting to enjoin the State court proceedings, considerations of comity would mandate absention. A request for an injunction against the City’s enforcing the ordinance raises no such considerations. Although Younger “and its progeny express a strong federal policy against federal-court interference with pending state judicial proceedings, absent extraordinary circumstances,” Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 431, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982) (emphasis added), the Younger Court itself specifically distinguished Younger from cases where, as here, an injunction is sought against allegedly unconstitutional state" }, { "docid": "4421301", "title": "", "text": "doctrine of abstention ... is an extraordinary and narrow exception to the duty of a district court to adjudicate a controversy properly before it.” Colorado River Water Conservation Disk v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976) (quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188, 79 S.Ct. 1060, 1062, 3 L.Ed.2d 1163 (1959)). “Abstention rarely should be invoked.” Ankenbrandt v. Richards, — U.S. -, -, 112 S.Ct. 2206, 2215, 119 L.Ed.2d 468 (1992). In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court articulated the principle that federal courts should refrain from interfering with ongoing state criminal proceedings. This principle has been extended to ongoing civil and administrative proceedings. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (civil proceedings); Ohio Civil Rights Comm’n v. Dayton Christian Schools, 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) (administrative proceedings). The district courts may abstain only when: (1) there are ongoing state proceedings that are judicial in nature; (2) the state proceedings implicate important state interests; and, (3) the state proceedings afford an adequate opportunity to raise the federal claims. Gwynedd Properties, Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1200 (3d Cir.1992) (citing Middlesex County Ethics Comm. v. Garden State Bar Ass ’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982) and Schall v. Joyce, 885 F.2d 101, 106 (3d Cir.1989)). See also Ohio Civil Rights Comm’n, ill U.S. at 627, 106 S.Ct. at 2723 (Younger principles implicated with ongoing state administrative proceedings “in which important state interests are vindicated, so long as in the course of those proceedings the federal plaintiff would have a full and fair opportunity to litigate his constitutional claim”). Courts also may decline to abstain upon a showing of “bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate.” Middlesex, 457 U.S. at 435, 102 S.Ct. at 2523. It appears from plaintiffs’ proposed Second Amended Complaint that some administrative proceeding took place" }, { "docid": "19213014", "title": "", "text": "for speeding). Abstention is appropriate in favor of state proceedings if (1) the state proceedings are ongoing, (2) the proceedings implicate important state interests, and (3) the state proceedings provide the plaintiff an adequate opportunity to litigate federal constitutional questions. Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982); accord Fresh Int'l Corp. v. Agricultural Labor Relations Bd., 805 F.2d 1353, 1357-58 (9th Cir.1986). If these three circumstances exist, then “a district court must dismiss the federal action ... [and] there is no discretion to grant injunctive relief.” Fresh Int’l Corp., 805 F.2d at 1356 (citing Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 816 n. 22, 96 S.Ct. 1236, 1245, 47 L.Ed.2d 483 (1976)). If, however, the plaintiff can show that the state proceedings were instituted in bad faith, or if other extraordinary circumstances exist, then the federal court should not abstain. Younger, 401 U.S. at 53-54, 91 S.Ct. at 755. For example, if a statute “flagrantly and patently” violates “express con stitutional prohibitions in every clause, sentence and paragraph,” then federal intervention in state court proceedings is appropriate. Id. Here, state administrative proceedings and judicial proceedings were ongoing at the time the plaintiffs filed this section 1983 action, and the plaintiffs do not contest that the state has an important state interest in keeping drunk drivers off the road. Thus, the first two prongs of the Younger test are met. In addition, the third prong of the abstention inquiry — the adequacy of opportunity to raise constitutional issues — is satisfied by the plaintiffs’ ability to raise constitutional claims during judicial review of the administrative proceeding. Haw.Rev.Stat. § 286-260 (court may review whether director exceeded constitutional or statutory authority); see Dayton Christian Schools, 477 U.S. at 629, 106 S.Ct. at 2724 (even if constitutional claims cannot be raised in an administrative proceeding, it is “sufficient ... [that they] may be raised in state court judicial review of the administrative proceeding”); Partington v. Gedan, 880 F.2d 116, 124 (9th Cir.1989) (same), vacated in part" }, { "docid": "9444513", "title": "", "text": "federal court involvement in local land use decision-making, a result never intended by Congress in enacting § 1983 ... The essentially local character of this dispute and the availability of constitutional remedies in state court argue strongly against federal intervention, although the action is cast as a civil rights violation”). II. Abstention Although I have denied Plaintiffs’ preliminary injunction motion because Plaintiffs are unlikely to succeed on the merits, I note that Younger abstention also weighs in favor of denying Plaintiffs the remedy they seek. A. Standard ofRevieiu In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court established the principle that federal courts generally should not enjoin or interfere with ongoing state court proceedings. Younger held, specifically, that a federal court may not enjoin pending state court criminal proceedings absent bad faith, harassment or other unusual circumstances calling for equitable relief. In Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), the Court extended the reasoning of Younger to state administrative proceedings. Middlesex invoked a three-prong test for ab stention in non-criminal proceedings: (1) whether the administrative proceedings constitute ongoing state judicial proceedings; (2) whether the state proceedings implicate important state interests; and (3) whether state procedures are available that allow the plaintiff to raise his federal claim in state court. Middlesex, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982). An affirmative finding of all three factors compels a district court to abstain unless the state proceeding was commenced in bad faith or was filed for the purpose of harassing the plaintiff, or if other unusual circumstances warrant the court’s intervention. Middlesex, 457 U.S. at 435, 102 S.Ct. at 2523. A district court should not abstain “where a prosecution or proceeding has been brought to retaliate for or to deter constitutionally protected conduct, or where a prosecution or proceeding is otherwise brought in bad faith or for the purpose to harass.” Cullen v. Fliegner, 18 F.3d 96, 103-04 (2d Cir.1994), cert. denied sub nom., 513 U.S. 985, 115" }, { "docid": "18598951", "title": "", "text": "manifest” intent on the part of Congress to preempt the entire field. Hillsborough County v. Automated Med. Labs., 471 U.S. 707, 716, 105 S.Ct. 2371, 2377, 85 L.Ed.2d 714 (1985). The claim against the federal defendant was properly dismissed. 3. Younger Abstention At the time appellants brought this action, they were all defendants in Oregon state court proceedings brought by the state to establish paternity and collect support obligations on behalf of children who were receiving or had received AFDC benefits. In the underlying action, appellants sought a declaratory judgment that the federal AFDC regulations were unconstitutional and an order restraining the state defendants from, inter alia, collecting all past and future support obligations. As indicated above, the district court dismissed appellants’ claim against the state defendants based on the principles espoused in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). While the Younger case involved criminal proceedings, “[Cjoncerns of comity and federalism counsel restraint in civil proceedings as well, when important state interests are at stake.” Fresh Int’l Corp. v. Agricultural Labor Relations Bd., 805 F.2d at 1356; accord, Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982) (“[tjhe policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved.”). Thus, “[Ajbstention is appropriate in favor of a state proceeding if (1) the state proceedings are ongoing; (2) the proceedings implicate important state interests; and (3) the state proceedings provide an adequate opportunity to raise federal questions.” Fresh Int’l, 805 F.2d at 1357-58 (citing Middlesex, supra). Appellants argue that the first prong of the above three-part test has not been met because four of the appellants’ state court paternity proceedings are no longer “ongoing”. This argument fails for two reasons. First, Oregon law subjects these appellants to ongoing child support proceedings that continue until the applicable support orders are either vacated or dismissed. Or. Rev.Stats. §§ 107.135, 109.103. Until then, either party to those proceedings can file a motion requesting that the state court modify the support" }, { "docid": "5311979", "title": "", "text": "After the appeal was argued before this court, the administrative proceedings before the Department of Corporations were finalized. The administrative law judge narrowed the Commissioner’s Cease and Desist Order, holding that Delta had violated the Knox-Keene Act in two respects, and affirmed the Order as amended. II. A. We review de novo the district court’s refusal to abstain under Younger. See Benavidez v. Eu, 34 F.3d 825, 831 (9th Cir.1994). The Younger abstention doctrine reflects the strong federal policy against federal interference with pending state judicial proceedings. See Fresh Int’l Corp. v. Agricultural Labor Relations Bd., 805 F.2d 1353, 1356 (9th Cir.1986). Although the Younger case involved pending state criminal proceedings, the doctrine applies to pending state administrative proceedings as well. See id.; Bud Antle, Inc. v. Barbosa, 45 F.3d 1261, 1272 (9th Cir.1994) (noting that Younger applies to state administrative hearings so long as the proceedings are “judicial in nature”). When a case is one in which the Younger doctrine applies, the district court has no discretion; it must dismiss. Fresh Int’l, 805 F.2d at 1356. B. The Supreme Court has announced a three-prong test to determine whether a federal district court should abstain from hearing a case where Younger abstention is invoked. Id. at 1357. Abstention is required when: “(i) the state proceedings are ongoing; (ii) the proceedings implicate important state interests; and (iii) the state proceedings provide an adequate opportunity to raise federal questions.” Id. at 1357-58 (citing Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431, 102 S.Ct. 2515, 2520-21, 73 L.Ed.2d 116 (1982)). We find that all three prongs are satisfied and conclude that the district court erred in entertaining this action. Because we hold that the district court should have abstained from hearing this action, we do not reach the issue of whether ERISA preempts enforcement of the Commissioner’s Order as to Delta’s ERISA-governed plans. 1. The critical issue in regard to the first prong of the test is whether the “state proceedings were underway before the initiation of the federal proceedings,” not whether the state proceedings were still “ongoing”" }, { "docid": "4436438", "title": "", "text": "make such a finding. II. Abstention Defendants ask the Court to abstain from ruling in this action under the principles of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Under Younger and its progeny, federal-court interference with ongoing state judicial proceedings is discouraged, absent extraordinary circumstances, based on “notions of comity and respect for state functions.” Fresh International v. Agricultural Labor Relations Board, 805 F.2d 1353 (9th Cir.1986). Younger principles apply to pending state administrative proceedings where important state interests are involved. Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 2723 and n. 2, 91 L.Ed. 2d 512 (1986). The Supreme Court has established a three-part test for determining whether abstention in favor of a state proceeding is appropriate in a given situation. Abstention is proper if: (1) the state proceedings are ongoing; (2) the proceedings implicate important state interests; and (3) the state proceedings provide an adequate opportunity to raise federal questions. Fresh, 805 F.2d at 1358 (citing Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). In this case, it is the second factor which is contested. Defendants contend that the State of Montana has an important interest in enforcing its unemployment benefits law. Plaintiff, relying heavily on the Ninth Circuit’s decision in Champion International Corp. v. Brown, 731 F.2d 1406 (9th Cir.1984), counters that no important state interest is involved because the statute in question is preempted by the NLRA, and a state cannot have a substantial interest in enforcing an invalid law. In Champion, the Circuit Court did hold that the State of Montana had no substantial interest in enforcing its age discrimination laws because they were preempted by ERISA. Id., at 1408-09. However, in a later case, Fresh International v. Agricultural Labor Relations Board, 805 F.2d 1353 (9th Cir.1986), the court clarified its prior decision, stating: [W]e did not say in Champion that abstention is never appropriate when a preemption claim is raised ... Rather, Champion was a case in which preemption was" }, { "docid": "5264042", "title": "", "text": "if the district court’s dismissal of the Latino residents’ complaint was based on intervention principles, it erred. IV A In the alternative, Governor Wilson contends that the district court could have based its dismissal on Younger abstention, just as it dismissed the original plaintiffs pursuant to Younger. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). We review de novo a decision to abstain based on the Younger doctrine. Kenneally v. Lungren, 967 F.2d 329, 331 (9th Cir.1992). Younger abstention recognizes the interest in federal-state comity and the limited role courts of equity have. Younger, 401 U.S at 44-45, 91 S.Ct. at 750-51. It may apply to civil proceedings. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 & n. 12, 107 S.Ct. 1519, 1528 n. 12, 95 L.Ed.2d 1 (1987); Fresh Int’l Corp. v. Agricultural Labor Bd., 805 F.2d 1353, 1356-57 (9th Cir.1986). Younger abstention is appropriate when: 1) there is an ongoing state judicial proceeding, 2) the proceeding implicates important state interests, and 3) the proceeding offers an adequate opportunity to raise constitutional issues. Middlesex Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982); Partington v. Gedan, 880 F.2d 116, 121 (9th Cir.1989); Beltran v. California, 871 F.2d 777, 781 (9th Cir.1988). However, the “task in [potential abstention] cases ... is not to find some substantial reason for the exercise of federal jurisdiction by the district court; rather, the task is to ascertain whether there exist ‘exceptional’ circumstances, the ‘clearest of justifications’ that can suffice ... to justify the surrender of that jurisdiction.” Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25-26, 103 S.Ct. 927, 942, 74 L.Ed.2d 765 (1983). In light of these principles, the application of Younger to the intervenors was incorrect. Younger requires that “in the course of [the ongoing state proceedings] the federal plaintiff would have a full and fair opportunity to litigate his constitutional claim.” Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U.S. 619, 627, 106 S.Ct. 2718, 2723, 91 L.Ed.2d" }, { "docid": "383157", "title": "", "text": "its constitutional grant of power to regulate the practice of law. See Ohio Const, art. IV, § 2(B)(1)(g). Promulgation and enforcement of the rules are plainly exercises of Ohio’s sovereign power. Under Bates, state action immunity exists and plaintiffs’ antitrust claims are barred. B. INJUNCTIVE AND DECLARATORY RELIEF 1. Younger Abstention Plaintiffs sought to enjoin the state disciplinary proceedings and to have the proceedings declared unconstitutional. Defendants respond that the district court properly abstained under Younger. In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court held that a federal court should not enjoin a pending state criminal proceeding unless “the danger of irreparable loss is both great and immediate.” Id. at 45, 91 S.Ct. at 751 (quoting Fenner v. Boykin, 271 U.S. 240, 243, 46 S.Ct. 492, 493, 70 L.Ed. 927 (1926)). The Supreme Court extended Younger “to noncriminal judicial proceedings when important state interests are involved.” Middlesex County Ethics Comm. v. Garden State Bar Ass'n 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982). See Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979); Huffman v. Pursue, Ltd., 420 U.S. 592, 604-05, 95 S.Ct. 1200, 1208-09, 43 L.Ed.2d 482 (1975). In Middlesex, a case similar to the present appeal, a lawyer challenged disciplinary proceedings of the New Jersey Bar Association by filing suit in federal court. He contended that the proceedings violated his First Amendment rights. Middlesex, 457 U.S. at 427-29, 102 S.Ct. at 2518-20. The Court held that the federal district court correctly dismissed the case based on Younger. As part of its analysis, the Court enunciated a three-part inquiry for the application of Younger abstention to state bar disciplinary hearings: [FJirst, do state bar disciplinary hearings within the constitutionally prescribed jurisdiction of the State Supreme Court constitute an ongoing state judicial proceeding; second, do the proceedings implicate important state interests; and third, is there an adequate opportunity in the state proceedings to raise constitutional challenges. Id. at 432, 102 S.Ct. at 2521 (emphasis omitted). The similarities between the present appeal" }, { "docid": "321496", "title": "", "text": "claims under the doctrine set forth in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). “Younger abstention dictates that federal courts not interfere with state court proceedings by granting equitable relief — such as injunctions of important state proceedings or declaratory judgments regarding constitutional issues in those proceedings — when such relief could adequately be sought before the state court.” Rienhardt v. Kelly, 164 F.3d 1296, 1302 (10th Cir.1999). Absent extraordinary circumstances, a district court must abstain from exercising jurisdiction in a case where (i) a state criminal, civil or administrative proceeding is ongoing, (ii) the state court provides an adequate forum to hear the claims raised in the federal complaint, and (iii) the state proceedings involve important state interests. Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 433-34, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). The third element is satisfied “if the State’s interests in the proceeding are so important that exercise of the federal judicial power would disregard the comity between the States and the National Government.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987). Defendant argues that abstention is required here because plaintiffs Cromartie and Tipton both have appeals pending before the North Carolina Office of Administrative Hearings. However, defendant identifies no overriding state interests, see Middlesex County Ethics Comm., 457 U.S. at 434, 102 S.Ct. 2515 (concluding that a state’s interest in the professional conduct of attorneys is of special importance), or matters that traditionally look to state law for resolution, see, e.g., Moore v. Sims, 442 U.S. 415, 435, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (concluding that family relations are a “traditional area of state concern” warranting Younger abstention). Nor does defendant demonstrate how resolution of plaintiffs’ claims will needlessly interfere with state activities. See, e.g., Pennzoil, 481 U.S. at 13-14, 107 S.Ct. 1519 (allowing a party to challenge the processes by which a state court compels compliance with its judgments would interfere with the execution of state judgments). At issue in both this action and the" }, { "docid": "12964568", "title": "", "text": "claims the lower court should have abstained from exercising jurisdiction in this case because there is an ongoing state proceeding and, that being so, the railroad has failed to exhaust its state remedies. Therefore, PUCO contends, abstention is mandated pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). However, we find this claim to be meritless. This court has held that abstention pursuant to Younger is appropriate only when a court can answer the following three questions affirmatively: 1) do the relevant state proceedings “constitute an ongoing state judicial proceeding;” 2) do the proceedings “implicate important state interests;” and 3) is there “an adequate opportunity in the state proceedings to raise constitutional challenges.” CSXT, Inc. v. Pitz, 883 F.2d 468, 474 (6th Cir.1989) (quoting Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982)), cert. denied, — U.S. -, 110 S.Ct. 1480, 108 L.Ed.2d 616 (1990). The first prerequisite of Younger abstention is that the state proceeding must be an ongoing or pending judicial proceeding. New Orleans Pub. Serv., Inc. v. New Orleans, 491 U.S. 350, 109 S.Ct. 2506, 2518-19,105 L.Ed.2d 298 (1989) (“NOPSI”). However, “when no state proceeding is pending, and considerations of equity, comity, and federalism are therefore diminished, a federal court may consider constitutional challenges to state statutes and grant declaratory and injunctive relief.” WXYZ, Inc. v. Hand, 658 F.2d 420, 423 (6th Cir.1981) (citing Wooley v. Maynard, 430 U.S. 705, 710-11, 97 S.Ct. 1428, 1432-34, 51 L.Ed.2d 752 (1977)). PUCO contends that the state action in this case is still “pending” because the railroad did not exhaust its right of appeal of PUCO’s order. However, we think there was no “ongoing” or “pending” proceeding at the time the railroad filed suit in the district court. PUCO conducted an administrative hearing and concluded that the railroad was in violation of Rule 4901:3-1-05(D). That was the end of the matter and no further administrative proceedings were contemplated or appeals available to the railroad short of resort to judicial review. The Fifth" }, { "docid": "9884031", "title": "", "text": "In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court held that the federal courts must' defer to ongoing state criminal proceedings. Since Younger, deference has been similarly required to ongoing, originally state-initiated civil or even administrative proceedings that satisfy three conditions: (1) the proceedings are judicial (as opposed to legislative) in nature; (2) they implicate important state interests; and (3) they provide an adequate opportunity to raise federal constitutional challenges. See Middlesex Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1981) (civil proceedings); Ohio Civil Rights Comm’n v. Dayton Schools, 477 U.S. 619, 627-29, 106 S.Ct. 2718, 2722-24, 91 L.Ed.2d 512 (1985) (administrative proceedings). Here, we agree with the district court that Younger abstention is plainly required. A. Ongoing State Proceedings In determining whether federal proceedings would interfere with ongoing state proceedings, the proper point of reference is the date plaintiff filed his federal complaint. See, e.g., Liedel v. Juvenile Court of Madison County, ALA, 891 F.2d 1542, 1546 n. 6 (11th Cir.1990) (“The date of filing of the federal complaint is the relevant date for purposes of determining Younger’s applicability.”); Beltran v. State of California, 871 F.2d 777, 782 (9th Cir.1988) (same); DeSpain v. Johnston, 731 F.2d 1171, 1178 (5th Cir.1984) (same); cf. Pennzoil v. Texaco, 481 U.S. 1, 17, 107 5.Ct. 1519, 1529, 95 L.Ed.2d 1 (1987) (analyzing Younger abstention as of the time the case was filed in federal court); Marcal Paper Mills, Inc. v. Ewing, 790 F.2d 195, 195 (1st Cir.1986) (same). Plaintiff filed his present federal complaint after he had petitioned the SJC to review the Board’s decision to revoke his license. Were the district court to grant any of the forms of relief sought by plaintiff — whether that be (1) an injunction ordering the Board to return Dr. Betten-court’s license; (2) a declaratory judgment declaring the Board’s action to be in violation of federal law; or (3) a ruling in support of an award of money damages — the effect would be to disrupt substantially" } ]

[ { "docid": "18557856", "title": "", "text": "in possession or control of property that the trustee may use, sell or lease under 11 U.S.C. § 363, or that the debtor may exempt, shall deliver such property to the trustee unless that property is of inconsequential value to the estate. In construing § 542, the United States Supreme Court has recently held that “the reorganization estate [of a chapter 11 debtor] includes property of the debtor that has been seized by a creditor prior to the filing of the petition for reorganization.” United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 2315, 76 L.Ed.2d 515 (1983). The debtor’s right to turnover apparently terminates when the creditor becomes vested with an ownership interest in the repossessed property rather than a mere posses-sory interest. Id. at 2316. Turnover likewise must be denied unless the debtor proves that the creditor’s interest in the property is adequately protected. 11 U.S.C. § 363(e); Whiting Pools, 103 S.Ct. at 2313. In the case at bench the vehicle in question is not insured and as such it is not adequately protected. In Re Heinzeroth, 40 B.R. 518 (Bankr.E.D.Pa., 1984); First National Bank and Trust Company of Rockford v. Ausherman (In Re Ausherman), 34 B.R. 393 (Bankr.N.D.Ill.1983); Ward v. Scott Segal Farms, Inc. (In Re Scott Segal Farms, Inc.), 31 B.R. 377 (Bankr.S.D.Fla.1983). In light of this conclusion we need not decide whether the rule announced in Whiting Pools for chapter 11 debtors is applicable to the case at bench which is a chapter 13 proceeding. We will enter an order denying the complaint for turnover. . This opinion constitutes the findings of fact and conclusions of law required by Bankruptcy Rule 7052 (effective August 1, 1983). . § 542. Turnover of property to the estate (a) Except as provided in subsection (c) or (d) of this section, an entity, other than a custodian, in possession, custody, or control, during the case, of property that the trustee may use, sell, or lease under section 363 of this title, or that the debtor may exempt under section 522 of this title, shall deliver to" } ]

[ { "docid": "19106285", "title": "", "text": "status quo under California law is that the creditor possesses the car and the debtor has the right to redeem. The automatic stay and the other provisions of the Code should not be applied to upset this balance and give debtors rights they would otherwise not have. A creditor who has properly taken possession prepetition should not have to turn over such property absent assurance that its prepetition position will be protected. Demanding proof of insurance is a valid request for such assurance. Conclusion The ear was and is property of the estate, the repossession did not change this. The right to possess the ear, however, was transferred from the Debtor to Autoflow prior to the filing of the petition. Since the Debtor did not have the unfettered right to possession at the time the petition was filed the unfettered right to possession did not become property of the estate. Thus, Auto-flow’s refusal to return the car absent the provision of adequate protection was not a violation of the automatic stay. This memorandum decision constitutes findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Proeedure 7052. Counsel for the Debtor is directed to file with this court an order in conformance with this Memorandum Decision within ten (10) days from the date of entry hereof. . Within the recent past, several decisions have been published addressing this same scenario with variant results. Compare, In re Lewis, 211 B.R. 970 (N.D.Ala.1997); Matter of Brown, 210 B.R. 878, 882 (Bankr.S.D.Ga.1997); In re Massey, 210 B.R. 693 (Bankr.D.Md.1997); In re Young, 193 B.R. 620 (Bankr.D.D.C.1996); and In re Richardson, 135 B.R. 256 (Bankr.E.D.Tex.1992) (each determining that the secured creditor was not required to immediately turn over the car); and In re Deiss, 166 B.R. 92 (Bankr.S.D.Tex.1994) (creditor entitled to adequate protection before turnover); with In re Sharon, 200 B.R. 181 (Bankr.S.D.Ohio 1996) (holding that secured creditor violated automatic stay by retaining repossessed vehicle); and In re Leverette, 118 B.R. 407 (Bankr.S.C.1990) (holding that the automobile is property of the estate and must be turned over immediately per Bankruptcy Code" }, { "docid": "13553538", "title": "", "text": "11 U.S.C. § 362(a). Under § 362(h), a willful violation of the stay gives the debtor the right to recover actual as well as punitive damages from the creditor. However, there is no express language in § 362 requiring a creditor to return property repossessed prepetition solely because a bankruptcy petition was filed. Several opinions have determined that once a debtor in bankruptcy requests the return of property, the secured creditor must ordinarily turn the property back to the debtor. See Spears, 223 B.R. at 165-66 (collecting cases). These courts find that a creditor has a duty upon learning of the bankruptcy to return a repossessed vehicle. “Further, the creditor’s duty to return the vehicle is not dependant on receipt of adequate protection or proof of insurance. Section 542(a) contains no provision expressly requiring adequate protection as a prerequisite to turnover and it requires no preliminary action on the part of the debtor.” In re Brooks, 207 B.R. 738, 741 (Bankr.N.D.Fla.1997) (citing In re Sharon, 200 B.R. 181, 189 (Bankr.S.D.Ohio 1996)). However, other opinions have found that a creditor may retain possession of collateral repossessed pre-petition until adequate protection is provided or offered. Spears, 223 B.R. at 166 (citing In re Fitch, 217 B.R. 286, 290-91 (Bankr.S.D.Ca.1998)); In re Massey 210 B.R. 693, 696 (Bankr.D.Md.1997); In re Deiss, 166 B.R. 92/94 (Bankr.S.D.Tex.1994); In re Richardson, 135 B.R. 256, 260 (Bankr.E.D.Tex.1992); In re Brown, 210 B.R. 878, 883 (Bankr.S.D.Ga.1997). Id. (collecting eases). The latter viewpoint is better reasoned; given the inherent risk to any auto on the road, a creditor’s property security interest merits protection when it turns over possession of an automobile to a debtor. Thus, a creditor that repossesses estate property pre-petition is under no obligation to return the property post-petition until and unless adequate protection is provided. “Since the purpose of the automatic stay is to maintain the status quo that existed on the date of a debtor’s bankruptcy filing, the creditor should not have to turn over the vehicle absent assurance that its pre-petition position will be protected.” Spears, 223 B.R. at 166. In general, “debtor must" }, { "docid": "1077970", "title": "", "text": "must both provide adequate protection to the creditor and seek affirmative relief to obtain a turnover. See In re Richardson, 135 B.R. 256, 258-60 (Bankr.E.D.Tex.1992); In re Koresko, 91 B.R. 689, 695 (Bankr.E.D.Pa.1988); In re Loof 41 B.R. 855, 856 (Bankr.E.D.Pa.1984) (GOLDHABER, Ch. J.); In re Attinello, 38 B.R. 609, 610-12 (Bankr.E.D.Pa.1984) (TWARDOWSKI, present Ch.J.); and In re English, 20 B.R. 877, 879 (Bankr.E.D.P.1982) (KING, J.). We acknowledge the presence of a few decisions which hold that even a secured creditor’s post-petition continued retention of a motor vehicle repossessed pre-petition is a violation of 11 U.S.C. § 362(a). See In re Knaus, 889 F.2d 773, 774-75 (8th Cir.1989); and Carr v. Security Savings & Loan Ass’n, 130 B.R. 434, 437-38 (D.N.J.1991). However, we agree with the observation of the Richardson court, 135 B.R. at 260, that the courts in neither Knaus nor Carr appear to have focused on the adequate protection requirement. We agree with the reasoning of Richardson and the prior decisions in this jurisdiction which support it. We therefore reject the assumption made by the Debtor and, we believe somewhat unfortunately, by the courts in Merchant, Carson, and Gustafson in comparable settings, that Cabrini’s mere continued assertion of a pre-petition absence of an obligation on its part to supply the Debt- or’s transcript to third parties violates the automatic stay. As the Gustafson dissent, we believe properly, observes, 111 B.R. at 290, the Third Circuit Court of Appeals has also held, in Brown v. Pennsylvania State Employees Credit Union, 851 F.2d 81, 85-86 (3rd Cir.1988), that a creditor’s communication to a debtor of its policies in dealing with that debtor’s bankruptcy-filing event in the future is not violative of the automatic stay. Accord, In re Saunders, 105 B.R. 781, 786 (Bankr.E.D.Pa.1989) (FOX, J.) (college does not violate automatic stay in merely communicating an institutional policy supporting denial of a demand of a debtor). We therefore conclude that it would be inconsistent with not only the decision in Johnson, but also the reasoning in Brown and decisions by all of the present and recent past judges of this court" }, { "docid": "3754549", "title": "", "text": "extended to Chapter 13 cases as well. See In re Attinello, 38 B.R. 609, 611 (Bankr.E.D.Pa.1984); In re Robinson, 36 B.R. 35, 37 (Bankr.E.D.Ark.1983); In re Radden, 35 B.R. 821, 827 (Bankr.E.D.Va.1983). In that vein, the court in Robinson, supra, stated: the congressional goal of encouraging individual reorganization under Chapter 13 is as high a priority, if not higher, as the goal of encouraging Chapter 11 which the Supreme Court refers to in Whiting Pools. The broad application of § 542(a) in a Chapter 13 proceeding is entirely consistent with this goal and is consistent with the Supreme Court analysis and conclusion in Whiting Pools. 36 B.R. at 38. I concur with those courts which have extended Whiting Pools to the Chapter 13 context. Furthermore, this court is of the opinion that the Whiting Pools rationale applies with equal, if not greater, force in this case for the very fact that Appellant is an unsecured creditor. Such an extension is rational in that an unsecured creditor’s rights are generally subordinate to those of a secured creditor. Accordingly, under Whiting Pools and its progeny, I find that the repossessed vehicle is part of Appel-lees’ Chapter 13 estate and is therefore subject to the turnover provisions of section 542 of the Code. Having determined that the vehicle is subject to the turnover provisions of section 542, the final question is whether Appellees are actually entitled to turnover. It is well settled that before a secured creditor may be compelled to turnover property under the Code, the debtor must demonstrate that the secured creditor’s interest is “adequately protected.” 11 U.S.C. § 363(e) and 11 U.S.C. § 361; see also In re Pine Lake Village Apartment Co., 19 B.R. 819, 823 (Bankr.S.D.N.Y.1982), reh’g denied, 21 B.R. 478 (1982). However, because Appellant here is an unsecured creditor, and because “there is no express statutory requirement that holders of unsecured claims be provided [the] ‘adequate protection’ of § 361 which may be required under §§ 362, 363 or 364 of the Code,” he is not entitled to “adequate protection”. In re Southern Biotech, Inc., 37 B.R." }, { "docid": "1077969", "title": "", "text": "982-83 (Bankr.E.D.Pa.1991); and In re Ford, 78 B.R. 729, 736 (Bankr.E.D.Pa.1987). Cf. Juras v. Aman Collection Service, Inc., 829 F.2d 739, 742-43 (9th Cir.1987), cert. denied, 488 U.S. 875, 109 S.Ct. 192, 102 L.Ed.2d 162 (1988) (a college is the owner of its transcripts, subject to the debtor’s right of access to it). Moreover, in a situation where a debtor seeks the return of property of the estate which a creditor retains on the basis of a pre-petition security interest or other special interest, the debtor is normally obliged to provide adequate protection to the creditor as a condition for the return of that property. See United States v. Whiting Pools, Inc., 462 U.S. 198, 204-05, 103 S.Ct. 2309, 2313-14, 76 L.Ed.2d 515 (1983); Shapiro, supra, 124 B.R. at 982-83; and Ford, supra, 78 B.R. at 734-37. Thus, in most jurisdictions, in situations where the debtor seeks the turnover of a motor vehicle that a secured creditor has repossessed but not yet resold prior to a bankruptcy filing, the result has been that the debtor must both provide adequate protection to the creditor and seek affirmative relief to obtain a turnover. See In re Richardson, 135 B.R. 256, 258-60 (Bankr.E.D.Tex.1992); In re Koresko, 91 B.R. 689, 695 (Bankr.E.D.Pa.1988); In re Loof 41 B.R. 855, 856 (Bankr.E.D.Pa.1984) (GOLDHABER, Ch. J.); In re Attinello, 38 B.R. 609, 610-12 (Bankr.E.D.Pa.1984) (TWARDOWSKI, present Ch.J.); and In re English, 20 B.R. 877, 879 (Bankr.E.D.P.1982) (KING, J.). We acknowledge the presence of a few decisions which hold that even a secured creditor’s post-petition continued retention of a motor vehicle repossessed pre-petition is a violation of 11 U.S.C. § 362(a). See In re Knaus, 889 F.2d 773, 774-75 (8th Cir.1989); and Carr v. Security Savings & Loan Ass’n, 130 B.R. 434, 437-38 (D.N.J.1991). However, we agree with the observation of the Richardson court, 135 B.R. at 260, that the courts in neither Knaus nor Carr appear to have focused on the adequate protection requirement. We agree with the reasoning of Richardson and the prior decisions in this jurisdiction which support it. We therefore reject the assumption made" }, { "docid": "1137810", "title": "", "text": "creditor knew of debtor’s filing. However, when the creditor subsequently sold the collateral at a public sale, the bankruptcy court found the creditor in contempt. The creditor was sanctioned not for its retention of the collateral post-petition but for its affirmative act of selling the collateral in violation of the stay. In selling the collateral, the creditor disrupted the status quo existing as of debtor’s petition and thus had exercised control over property of the estate in violation of § 362(a)(3). Id. at 643. In this case, upon learning of Debt- or’s petition for relief, BFAAS immediately put the vehicle in storage pending further order of this Court. There has been no sale of the property and the Debtor’s rights vis-a-vis BFAAS have not changed from the date of the filing of the petition for relief. Since no further affirmative action has been taken by BFAAS in disposing of Debtor’s vehicle, BFAAS’s actions can not be construed as an exercise of control over property of the estate as that term is understood by this Court. Finally, a note on procedure. A proceeding to recover money or property is governed by the rules relating to adversary proceedings. Fed.R.Bankr.P. 7001(1); In re: Frizzell, 104 B.R. 75, 76 (Bankr.S.D.Ind.1989). However, prior to a turnover of property, the rights of a creditor must be adequately protected. United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 2317, 76 L.Ed.2d 515 (1983) (a creditor remains entitled to adequate protection of its interest in the turnover context); In re: Olivas, 129 B.R. 122, 126 (Bankr.W.D.Tex.1991); In re: Tel-A-Communications Consultants, Inc., 50 B.R. 250, 253 (Bankr.D.Conn.1985) (adequate protection can require the obligation to obtain and keep in force all required insurance coverage); In re: Loof, 41 B.R. 855, 856 (Bankr.E.D.Penn.1984) (turnover denied without proof of vehicle insurance); In re: Attinello, 38 B.R. 609, 613 (Bankr.E.D.Penn.1984) (creditor adequately protected by equity cushion). In this case, BFAAS claims that one of the reasons supporting repossession of the vehicle was Debtor’s failure to obtain coverage insuring the value of the vehicle. While Debtor does not deny the prepetition" }, { "docid": "13553539", "title": "", "text": "found that a creditor may retain possession of collateral repossessed pre-petition until adequate protection is provided or offered. Spears, 223 B.R. at 166 (citing In re Fitch, 217 B.R. 286, 290-91 (Bankr.S.D.Ca.1998)); In re Massey 210 B.R. 693, 696 (Bankr.D.Md.1997); In re Deiss, 166 B.R. 92/94 (Bankr.S.D.Tex.1994); In re Richardson, 135 B.R. 256, 260 (Bankr.E.D.Tex.1992); In re Brown, 210 B.R. 878, 883 (Bankr.S.D.Ga.1997). Id. (collecting eases). The latter viewpoint is better reasoned; given the inherent risk to any auto on the road, a creditor’s property security interest merits protection when it turns over possession of an automobile to a debtor. Thus, a creditor that repossesses estate property pre-petition is under no obligation to return the property post-petition until and unless adequate protection is provided. “Since the purpose of the automatic stay is to maintain the status quo that existed on the date of a debtor’s bankruptcy filing, the creditor should not have to turn over the vehicle absent assurance that its pre-petition position will be protected.” Spears, 223 B.R. at 166. In general, “debtor must provide to the creditor adequate protection for the potential harm that the creditor could reasonably sustain as a result of debtor’s possession and use. Protection must be provided for potential damage to the collateral ... and for the depreciation of the asset including mileage and wear and tear.” In re Massey, 210 B.R. 693, 696 (Bankr.D.Md.1997) (internal citations omitted). The court in Massey required the debtor to make all regular post-petition contractual payments, to provide proof of current insurance, to notify the creditor as to where the vehicle will be kept, and to refrain from removing the vehicle from the state. However, the court also stated that “where the vehicle remains in the hands of the secured creditor, the potential harm from continuation of the stay does not usually include road risks or wear and tear, but often will include depreciation resulting from the aging of the vehicle, plus costs incurred in storage.” Id. at 696, n. 3. While Debtor has alleged that her plan will provide adequate protection for Grand National’s interest, that plan" }, { "docid": "8390314", "title": "", "text": "of its interest “according to the congressionally established bankruptcy procedures, rather than by withholding the seized property from the debtor’s efforts to reorganize,” (id. at 2317), Whiting Pools also stated that property seized pre-petition was property of the bankruptcy estate and could be subject to turnover (while not specifying whether this principle would apply in a Chapter 13 case). Id. at 2315 n. 17. Still, most bankruptcy and district court opinions have decided that a Chapter 13 debtor retains sufficient interest in a vehicle that was repossessed prebankruptcy to maintain an action or motion for turnover. See Spears v. Ford Motor Credit Co., 223 B.R. 159, 163 (Bankr.N.D.Ill.1998) (collecting cases); „ see also In re Pluto, 200 B.R. 740, 742 (Bankr.D.Mass.1996) (finding car remained property of estate because debtor still had right to redeem); In re Brooks, 207 B.R. 738, 741 (Bankr.N.D.Fla.1997) (finding creditor had obligation to return car upon learning of bankruptcy); In re Massey, 210 B.R. 693, 696 (Bankr.D.Md.1997) (finding creditor could keep car only until debtor provided adequate protection); In re Attinello, 38 B.R. 609 (Bankr.E.D.Pa.1984); but see, In re Lewis, 137 F.3d 1280 (11th Cir.1998). FMC cites to Lewis, id., as authority for the proposition that, unless Debtor intends to exercise her right to redeem the vehicle under 11 U.S.C. § 722, she is not entitled to a turnover of the property in issue. However, FMC’s reliance on Lewis is misplaced. In Lewis, the Eleventh Circuit opinion found that under Alabama law a debtor only had a right of redemption, and therefore the vehicle in question was not property of the bankruptcy estate. The opinion reasoned that, when the Chapter 13 case was filed, the debtor then “did not retain title, possession or any other functionally equivalent owner ship interest in the repossessed automobile.” Id. at 1284. However, Lewis really “looked to Alabama common law, and decisions finding that a debtor must have both title to and possession of a property in order to maintain an action for conversion....” Spears, 223 B.R. at 164. Based on Alabama law, “Lewis made a judgment that the debtor’s rights" }, { "docid": "11204174", "title": "", "text": "of a vehicle has occurred prepetition, but the vehicle has not yet been sold, a Chapter 13 debtor retains a sufficient interest in the vehicle so that turnover may be appropriate. National City Bank v. Elliott (In re Elliott), 214 B.R. 148, 151 (6th Cir. BAP 1997); American Honda Finance Corp. v. Littleton (In re Littleton), 220 B.R. 710, 715 (Bankr.M.D.Ga.1998); In re Fitch, 217 B.R. 286, 290 (Bankr.S.D.Cal.1998); Mattheiss v. Title Loan Express (In re Mattheiss), 214 B.R. 20, 32 (Bankr.N.D.Ala.1997); Turner v. DeKalb Bank (In re Turner), 209 B.R. 558, 562 (Bankr.N.D.Ala.1997); In re Sharon, 200 B.R. 181, 187 (Bankr.S.D.Ohio 1996); In re Pluta, 200 B.R. 740, 744 (Bankr.D.Mass.1996); In re Young, 193 B.R. 620, 621 (Bankr.D.D.C.1996); Karr v. General Motors Acceptance Corp. (In re Karr), 129 B.R. 498, 502 (Bankr.S.D.Ohio 1991); Leverette v. NCNB South Carolina (In re Leverette), 118 B.R. 407, 409 (Bankr.D.S.C.1990); In re Bingham, 116 B.R. 541, 543 (Bankr.N.D.Ohio 1990); Wallace v. G.M.A.C. (In re Wallace), 102 B.R. 114, 116 (Bankr.S.D.Ohio 1989). See also Pileckas v. Marcucio, 156 B.R. 721, 725 (N.D.N.Y.1993) (vehicle part of estate where creditor had failed to perfect its security interest). In addition, in cases where the issue litigated is whether a creditor has violated the automatic stay by refusing to turn over a vehicle repossessed prepetition, courts have observed that the vehicle is property of the estate. See General Motors Acceptance Corp. v. Ryan, 183 B.R. 288 (M.D.Fla.1995); Carr v. Security Sav. & Loan Ass’n, 130 B.R. 434 (D.N.J.1991); Massey v. Chrysler Financial Corp. (In re Massey), 210 B.R. 693 (Bankr.D.Md.1997); Brown v. Joe Addison, Inc. (In re Brown), 210 B.R. 878 (Bankr.S.D.Ga.1997); Brooks v. World Omni (In re Brooks), 207 B.R. 738 (Bankr.N.D.Fla.1997); Deiss v. Southwest Recovery, U.S. (In re Deiss), 166 B.R. 92 (Bankr.S.D.Tex.1994); In re Richardson, 135 B.R. 256 (Bankr.E.D.Tex.1992). Under the Uniform Commercial Code (“UCC”) as adopted in most states, after repossession, the debtor’s interest in the vehicle is a right to redeem the vehicle. Where a bankruptcy court orders that a secured creditor turn over a repossessed vehicle, a Chapter 13 debtor may modify" }, { "docid": "15931496", "title": "", "text": "analysis to Chapter 13 cases. See In re Richardson, 135 B.R. 256, 257 (Bankr.E.D.Tex.1992) (holding that Whiting Pools extends to and is applicable in a Chapter 13 case); Carr v. Security Savs. & Loan Ass’n, 130 B.R. 434, 436 (D.N.J.1991) (citing Whiting Pools in holding that the debtor’s car was property of the estate under Chapter 13); Sutton v. Ford Motor Credit Co., 87 B.R. 46, 49 n. 1 (Bankr.S.D.Ohio 1988) (holding that Whiting Pools is equally applicable to chapter 13 cases); Associates Comm’l Corp. v. Attinello (In re Attinello), 38 B.R. 609, 610—11 (Bankr.E.D.Pa.1984); Robinson v. Ford Motor Credit Co., 36 B.R. 35, 38 (Bankr.E.D.Ark.1983) (discerning no reason to apply § 542(a) differently in a Chapter 13 proceeding than under Chapter 11). This Court concurs with the courts that have extended Whiting Pools to the Chapter 13 context. In applying Whiting Pools to the instant case, the Supreme Court’s statement that 11 U.S.C. § 542(a) may not apply where a seizure transfers ownership of the property to the creditor becomes relevant. While a determination of whether the debtor’s interest is property of the estate is a matter of federal law, In re Thomas, 883 F.2d 991, 995 (11th Cir.1989) (citations omitted), the nature and existence of a debtor’s interest in property is determined in accordance with state law. Id. Pursuant to Oklahoma law, the transaction at issue, which created a security interest in personal property and occurred after July 1, 2001, comes within the scope of revised Uniform Commercial Code (“UCC”) Article 9 which has been enacted in Oklahoma and became effective July 1, 2001. Okla. Stat. Ann. tit. 12A, § 1-9-108 (West 2001). The parties do not dispute that Eldorado properly perfected its lien on the Vehicle. Okla. Stat. Ann. tit. 47, § 1110 (West Supp.2002). Furthermore, it is undisputed that Eldorado’s repossession and notice of sale were in compliance with the UCC. Thus, the primary question before the Court is whether the Repossession Title obtained by Eldorado transferred legal ownership of the Vehicle from Debtor to Eldorado. In order to make that determination, it is necessary to" }, { "docid": "16621284", "title": "", "text": "their interrelationship, as made by the court in In re Young, 193 B.R. 620 (Bankr.D.Col.1996). The court in Young, stated as follows: As suggested, the 1984 language forbidding an act to exercise control over property has been interpreted by some courts to mean that any postpetition retention of the debtor’s property violates the automatic stay and is, indeed, sanctionable. See In re Knaus, 889 F.2d 773 (8th Cir.1989) (duty to return property arises upon the filing of petition); Carr v. Security Savings & Loan Association, 130 B.R. 434 (D.N.J.1991) (creditor sanctioned for not turning over property despite alleged bad faith of petition); In re Coats, 168 B.R. 159 (Bankr.S.D.Tex.1993); General Motors Acceptance Corp. v. Ryan, 183 B.R. 288 (M.D.Fla.1995). * * * * * * In contrast, other courts have rejected the Knaus, approach, reasoning that § 362(a)(3) freezes the status quo on the filing of the petition rather than mandates affirmative action by the creditor in possession of property seized prepetition to return it immediately. In re Richardson, 135 B.R. 256 (Bankr.E.D.Tex.1992); cf. In re Deiss, 166 B.R. 92 (Bankr.S.D.Tex.1994) (creditor entitled to adequate protection before turnover); In re Najafi, 154 B.R. 185, 194-95 (Bankr.E.D.Pa.1993) (same). See also In re Briggs, 143 B.R. 438, 448 n. 15 (Bankr.E.D.Mich.1992) (dicta rejecting Knaus). ‡ ‡ ‡ ‡ ‡ ‡ In espousing the status quo approach, the court in Richardson, distinguished the contrary authority in the Eighth Circuit’s decision in Knaus on the grounds that Knaus failed to address the creditor’s entitlement to proof of adequate protection before the seized property is turned over. See Id. at 259. Richardson, distinguishes Carr on similar grounds — the creditor in that ease had demanded and received proof of insurance (and thus adequate protection) from the debtor and yet still refused to turn over the property. See id. Richardson, and the other courts supporting the status quo approach -argue that where there is no proof of adequate protection, “prior to the turnover of property, the rights of a creditor must be adequately protected.” Id. IV This court rejects the Knaus court’s (and its progeny’s) interpretation" }, { "docid": "11204175", "title": "", "text": "721, 725 (N.D.N.Y.1993) (vehicle part of estate where creditor had failed to perfect its security interest). In addition, in cases where the issue litigated is whether a creditor has violated the automatic stay by refusing to turn over a vehicle repossessed prepetition, courts have observed that the vehicle is property of the estate. See General Motors Acceptance Corp. v. Ryan, 183 B.R. 288 (M.D.Fla.1995); Carr v. Security Sav. & Loan Ass’n, 130 B.R. 434 (D.N.J.1991); Massey v. Chrysler Financial Corp. (In re Massey), 210 B.R. 693 (Bankr.D.Md.1997); Brown v. Joe Addison, Inc. (In re Brown), 210 B.R. 878 (Bankr.S.D.Ga.1997); Brooks v. World Omni (In re Brooks), 207 B.R. 738 (Bankr.N.D.Fla.1997); Deiss v. Southwest Recovery, U.S. (In re Deiss), 166 B.R. 92 (Bankr.S.D.Tex.1994); In re Richardson, 135 B.R. 256 (Bankr.E.D.Tex.1992). Under the Uniform Commercial Code (“UCC”) as adopted in most states, after repossession, the debtor’s interest in the vehicle is a right to redeem the vehicle. Where a bankruptcy court orders that a secured creditor turn over a repossessed vehicle, a Chapter 13 debtor may modify the rights of a secured creditor through the terms of its Chapter 13 plan. See, e.g., In re Sharon, 200 B.R. at 198-99 (discussing §§ 1322 and 1325). Notably, though, the Eleventh Circuit has recently reached a contrary result in a decision under Alabama law. Charles R. Hall Motors, Inc. v. Lewis (In re Lewis), 137 F.3d 1280, 1283 (11th Cir.1998). As discussed below, Lewis reaches its result by finding that a right of redemption is not a sufficient property interest to warrant turnover of a repossessed vehicle. In Lewis, the secured creditor argued that upon default, title and the right to possess a debtor’s automobile pass to the creditor. The Eleventh Circuit upheld the district court’s decision in favor of the creditor, finding that at the commencement of his Chapter 13 case, the debtor “did not retain title, possession or any other functionally equivalent ownership interest in the repossessed automobile.” Id. at 1284. Lewis found that in order to “change the [debtor’s] otherwise dormant right to redeem repossessed collateral into a meaningful ownership interest,”" }, { "docid": "1137811", "title": "", "text": "Finally, a note on procedure. A proceeding to recover money or property is governed by the rules relating to adversary proceedings. Fed.R.Bankr.P. 7001(1); In re: Frizzell, 104 B.R. 75, 76 (Bankr.S.D.Ind.1989). However, prior to a turnover of property, the rights of a creditor must be adequately protected. United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 2317, 76 L.Ed.2d 515 (1983) (a creditor remains entitled to adequate protection of its interest in the turnover context); In re: Olivas, 129 B.R. 122, 126 (Bankr.W.D.Tex.1991); In re: Tel-A-Communications Consultants, Inc., 50 B.R. 250, 253 (Bankr.D.Conn.1985) (adequate protection can require the obligation to obtain and keep in force all required insurance coverage); In re: Loof, 41 B.R. 855, 856 (Bankr.E.D.Penn.1984) (turnover denied without proof of vehicle insurance); In re: Attinello, 38 B.R. 609, 613 (Bankr.E.D.Penn.1984) (creditor adequately protected by equity cushion). In this case, BFAAS claims that one of the reasons supporting repossession of the vehicle was Debtor’s failure to obtain coverage insuring the value of the vehicle. While Debtor does not deny the prepetition lack of insurance coverage for the vehicle, Debtor maintains that BFAAS should have returned the vehicle upon Debtor’s providing proof of insurance in October, 1991. However, the Debtor’s insurance policy was a one month policy covering only Debt- or’s personal liability. Furthermore, the Court cannot reconcile Debtor’s conflicting testimony concerning insurance coverage. While Debtor’s plan budgets $45.00 per month for insurance coverage, Debtor testified that she is currently paying $66.00 per month for coverage. The binder for Debt- or’s October, 1991, policy indicates that Debtor paid $79.00 in October for liability coverage alone. The Court finds that at no time has the value of BFAAS’s collateral been protected by insurance. Returning to the cases previously cited to this Court in support of Debtor’s position, the Court makes the following observations. First, in Carr v. Security Sav. and Loan Ass’n, 130 B.R. 434 (D.N.J.1991) the Court observes that within days of debtor’s petition for relief, the debtor provided proof of insurance to the creditor and that the creditor verified this insurance coverage. Id. at 435. In" }, { "docid": "18552431", "title": "", "text": "362(a)(3) freezes the status quo on the filing of the petition rather than mandates affirmative action by the creditor in possession of property seized prepetition to return it immediately. In re Richardson, 135 B.R. 256 (Bankr.E.D.Tex.1992); cf. In re Deiss, 166 B.R. 92 (Bankr.S.D.Tex.1994) (creditor entitled to adequate protection before turnover); In re Najafi, 154 B.R. 185, 194-95 (Bankr.E.D.Penn.1993) (same). See also In re Briggs, 143 B.R. 438, 448 n. 15 (Bankr.E.D.Mich.1992) (dicta rejecting Knaus). The effect of the stay is to freeze the status quo. To the extent that a creditor fails to desist in these collection attempts and attempts to exercise control over property of the estate post-petition, such creditor can be sanctioned pursuant to § 362(h). However, this provision for creditors who affirmatively act in violation of the stay post-petition can not be extrapolated to punish creditors who, while legally seizing the property of the estate pre-petition, failed to return this property immediately to the debtor post-petition. In maintaining the seized property in the status it enjoyed just before the filing of debtor’s petition, a creditor is merely complying with the spirit of the § 362 freeze. In re Richardson, 135 B.R. at 258-59 (footnote omitted). In espousing the status quo approach, the court in Richardson distinguished the contrary authority in the Eighth Circuit’s decision in Knaus on the grounds that Knaus failed to address the creditor’s entitlement to proof of adequate protection before the seized property is turned over. See id. at 259. Richardson distinguishes Carr on similar grounds — the creditor in that case had demanded and received proof of insurance (and thus adequate protection) from the debtor and yet still refused to turn over the property. See id. Richardson and the other courts supporting the status quo approach argue that where there is no proof of adequate protection, “prior to the turnover of property, the rights of a creditor must be adequately protected.” Id. IV This court rejects the Knaus court’s (and its progeny’s) interpretation of the amendment to § 362(a)(3) which requires immediate turnover by the secured creditor possessing property rightfully seized prepetition." }, { "docid": "8509007", "title": "", "text": "until the automobile was sold. Haines v. General Motors Acceptance Corp. (In re Haines), 10 B.R. 856, 858 (Bankr.E.D.Pa.1981). . The Notice of Repossession indicated it would be offered \"at private sale beginning on 11/17/99, and from day to day thereafter until sold.” Id. Notwithstanding a miscom-munication to the contrary by one Chrysler representative, it was not sold at auction until almost one month later and eight days after the debtor filed this bankruptcy case. . The district court in Skinner limited its analysis to whether sanctions were warranted given the bankruptcy court’s finding that the violation of the stay was not willful. Id. at 475. Nevertheless, it is clear that the Skinner court considered the post-petition sale of an automobile repossessed pre-petition to constitute at least a technical violation in order for it to go on to the next step of analyzing willfulness. . The Debtor also alleges that the automatic stay was violated earlier, when Chrysler refused to turn over the automobile pursuant to 11 U.S.C. § 542(a) upon becoming aware of the filing of the Petition on December 6. Debt- or overstates the law in this regard. Turnover is required only where the debtor proves the secured creditor’s secured interest is adequately protected. Loof v. Frankford Trust Co. (In re Loof), 41 B.R. 855, 856 (Bankr.E.D.Pa.1984); Associates Commercial Corp. v. Attinello (In re Attinello), 38 B.R. 609, 611 (Bankr.E.D.Pa.1984). Absent proof of adequate protection, Chrysler would have been warranted in retaining the automobile. The issue of adequate protection was not addressed by either party. However, given my finding below, infra § IV, that the Debtor’s claim for damages arising from her loss of use of the Automobile is not supported by adequate evidence, whether the stay violation occurred on December 14 when the Automobile was sold or eight days earlier is of no practical relevance. This minor time difference is even more inconsequential because Chrysler would still have been allowed a reasonable period of time after notice of the bankruptcy to effect the turnover. See In re Belcher, 189 B.R. 16, (Bankr.S.D.Fla.1995) (finding four to five days" }, { "docid": "11204184", "title": "", "text": "their possession could, without cost to themselves, compel the debtor or his trustee to bring suit as a prerequisite to returning the property, the powers of a bankruptcy court and its officers to collect the estate for the benefit of creditors would be vastly reduced. The general creditors, for whose benefit the return of property is sought, would have needlessly to bear the cost of its return. And those who unjustly retain possession of such property might do so with impunity- Id. at 775. The countervailing position, which appears to be finding increasing support, is that a creditor need not turn over its collateral until adequate protection has been provided. See, e.g., In re Fitch, 217 B.R. at 290-91; In re Massey, 210 B.R. at 696; In re Deiss, 166 B.R. at 94; In re Richardson, 135 B.R. at 260. See also In re Brown, 210 B.R. at 883 (reaching same result, although concluding that debtor’s right to recover property arises under § 1306, rather than § 542(a)). As these decisions interpret the law, § 362(a)(3) reaches only postpetition affirmative actions to take control of a debtor’s property. E.g., In re Richardson, 135 B.R. at 259. The passive act of continuing to possess property does not fall within the prohibition under § 362(h). In re Young, 193 B.R. at 625. If a vehicle has been lawfully repossessed prepetition, the creditor had a right to possess the vehicle on the date the debtor filed for bankruptcy. In re Fitch, 217 B.R. at 288. Since the purpose of the automatic stay is to maintain the status quo that existed on the date of a debtor’s bankruptcy filing, the creditor should not have to turn over the vehicle absent assurance that its prepetition position will be protected. Id. at 291. The often-cited decision in Young comments that if § 362(a)(3) were interpreted as requiring immediate turnover, it would represent a dramatic shift from the pre-Code practice of allowing secured creditors to retain repossessed collateral until adequate protection was provided by the debtor. In re Young, 193 B.R. at 626. Importantly, too, it would" }, { "docid": "16621285", "title": "", "text": "re Deiss, 166 B.R. 92 (Bankr.S.D.Tex.1994) (creditor entitled to adequate protection before turnover); In re Najafi, 154 B.R. 185, 194-95 (Bankr.E.D.Pa.1993) (same). See also In re Briggs, 143 B.R. 438, 448 n. 15 (Bankr.E.D.Mich.1992) (dicta rejecting Knaus). ‡ ‡ ‡ ‡ ‡ ‡ In espousing the status quo approach, the court in Richardson, distinguished the contrary authority in the Eighth Circuit’s decision in Knaus on the grounds that Knaus failed to address the creditor’s entitlement to proof of adequate protection before the seized property is turned over. See Id. at 259. Richardson, distinguishes Carr on similar grounds — the creditor in that ease had demanded and received proof of insurance (and thus adequate protection) from the debtor and yet still refused to turn over the property. See id. Richardson, and the other courts supporting the status quo approach -argue that where there is no proof of adequate protection, “prior to the turnover of property, the rights of a creditor must be adequately protected.” Id. IV This court rejects the Knaus court’s (and its progeny’s) interpretation of the amendment to § 362(a)(3), which requires immediate turnover by the secured creditor possessing property rightfully seized prepetition. At best, as will be discussed below, the meaning of the Code’s restriction of an act “to exercise control”.is ambiguous, and the Knaus court’s analysis is too great a departure from traditional bankruptcy practice for this court to adopt that analysis without some legislative history endorsing such a dramatic change. * * * * * * That § 362(a)(3) is susceptible of a plausible interpretation contrary to that in Knaus is readily demonstrated. While each of the words “exercise” and “control” is clearly defined by Webster’s the significance of the phrase “to exercise control” in the Code is, at best, ambiguous, as evidenced by the split of authority cited above. And, absent any legislative history, Congress’s (sic) intent in amending the Code to restrict such an act is equally undivinable. The turnover provision of § 542(a) applies to property in the “possession, custody or control” of a creditor. Similarly, § 362(a)(3) restricts both an act to" }, { "docid": "8390318", "title": "", "text": "the debtor the right to recover actual as well as punitive damages from the creditor. However, there is no express language in § 362 requiring a creditor to return property repossessed pre-petition solely because a bankruptcy petition was filed. Several opinions have determined that once a debtor in bankruptcy requests the return of property, the secured creditor must ordinarily turn the property over to the debtor. See Spears, 223 B.R. at 165-66 (collecting cases). These courts find that a creditor has a duty upon learning of the bankruptcy to return a repossessed vehicle. “Further, the creditor’s duty to return the vehicle is not dependant on receipt of adequate protection or proof of insurance. Section 542(a) contains no provision expressly requiring adequate protection as a prerequisite to turnover and it requires no preliminary action on the part of the debtor.” In re Brooks, 207 B.R. 738, 741 (Bankr.N.D.Fla.1997) (citing In re Sharon, 200 B.R. 181, 189 (Bankr.S.D.Ohio 1996)). However, other opinions have found that a creditor may retain possession of collateral repossessed pre-petition until adequate protection is provided or offered. Spears, 223 B.R. at 166 (citing In re Fitch, 217 B.R. 286, 290-91 (Bankr.S.D.Ca.1998)); In re Massey 210 B.R. 693, 696 (Bankr.D.Md.1997); In re Deiss, 166 B.R. 92/94 (Bankr.S.D.Tex.1994); In re Richardson, 135 B.R. 256, 260 (Bankr.E.D.Tex.1992); In re Brown, 210 B.R. 878, 883 (Bankr.S.D.Ga.1997). Id. (collecting cases). The latter viewpoint is better reasoned; the creditor’s property rights merit protection when it turns over possession of an automobile to the debtor. Thus, a creditor that repossesses estate property pre-petition is under no obligation to return the property post-petition until and unless adequate protection is pro vided. Since the purpose of the automatic stay is to maintain the status quo that existed on the date of a debtor’s bankruptcy filing, the creditor should not have to turn over the vehicle absent assurance that its pre-petition position will be protected.” Spears, 223 B.R. at 166. In general, debtor must provide to the creditor adequate protection for the potential harm that the creditor could reasonably sustain as a result of debtor’s possession and use." }, { "docid": "16621283", "title": "", "text": "of a secured creditor to adhere to his turnover demand under any set of circumstances constitutes a violation of the § 362(a) automatic stay. The Trustee would apparently have the Court adopt the reasoning of the court in In re Sharon, 200 B.R. 181, 187-88 (Bankr.S.D.Ohio 1996) (Secured creditor that lawfully seized Chapter 13 debt- or’s automobile prepetition violated automatic stay pursuant to § 362(a)(3) in wrongfully exercising over property of the estate by refusing to turn over vehicle to debtor, absent court determination of adequate protection) (citing In re Knaus, 889 F.2d 773 (8th Cir.1989); Carr v. Security Savings & Loan Assoc., 130 B.R. 434 (D.N.J.1991); In re Dungey, 99 B.R. 814 (Bankr.S.D.Ohio 1989)). The Court respectfully disagrees with the conclusion reached by the court in Sharon, and concludes that the analysis of whether an act of a creditor violates § 362(a)(3) in refusing to relinquish possession of estate property postpetition that was properly repossessed prepetition requires a close reading of the purposes of § 542(a), § 362(a)(3), § 363(e), and § 363(o)(l), and their interrelationship, as made by the court in In re Young, 193 B.R. 620 (Bankr.D.Col.1996). The court in Young, stated as follows: As suggested, the 1984 language forbidding an act to exercise control over property has been interpreted by some courts to mean that any postpetition retention of the debtor’s property violates the automatic stay and is, indeed, sanctionable. See In re Knaus, 889 F.2d 773 (8th Cir.1989) (duty to return property arises upon the filing of petition); Carr v. Security Savings & Loan Association, 130 B.R. 434 (D.N.J.1991) (creditor sanctioned for not turning over property despite alleged bad faith of petition); In re Coats, 168 B.R. 159 (Bankr.S.D.Tex.1993); General Motors Acceptance Corp. v. Ryan, 183 B.R. 288 (M.D.Fla.1995). * * * * * * In contrast, other courts have rejected the Knaus, approach, reasoning that § 362(a)(3) freezes the status quo on the filing of the petition rather than mandates affirmative action by the creditor in possession of property seized prepetition to return it immediately. In re Richardson, 135 B.R. 256 (Bankr.E.D.Tex.1992); cf. In" }, { "docid": "13553534", "title": "", "text": "the protection of its interest “according to the con-gressionally established bankruptcy procedures, rather than by withholding the seized property from the debtor’s efforts to reorganize.” Id. at 2317 It was further held that property seized pre-petition was property of the bankruptcy estate and could be subject to turnover (while not specifying whether or not this principle would apply in a Chapter 13 case). Id. at 2315 n. 17. Most bankruptcy and district court opinions have decided that a Chapter 13 debtor retains sufficient interest in a vehicle that was repossessed pre-bankruptcy to maintain an action or motion for turnover. See In re Spears v. Ford Motor Credit Co., 223 B.R. 159, 163 (Bankr.N.D.Ill.1998) (collecting cases); see also In re Pluta, 200 B.R. 740, 742 (Bankr.D.Mass.1996) (finding car remained property of estate because debtor still had right to redeem); In re Brooks, 207 B.R. 738, 741 (Bankr.N.D.Fla.1997) (finding creditor had obligation to return car upon learning of bankruptcy); In re Massey, 210 B.R. 693, 696 (Bankr.D.Md.1997) (finding creditor could keep car only until debtor provided adequate protection); In re Attinello, 38 B.R. 609 (Bankr.E.D.Pa.1984); but see, In re Lewis, 137 F.3d 1280 (11th Cir.1998). Grand National cites to Lewis, supra, as authority for the proposition that, unless Debtor intends to exercise her right to redeem the vehicle under 11 U.S.C. § 722, she is not entitled to a turnover of the property in issue. However, the reliance on Lewis is misplaced. In Lewis, the Eleventh Circuit opinion found that under Alabama law a debtor only had a right of redemption, and therefore the vehicle in question was not property of the bankruptcy estate. The opinion reasoned that, when the Chapter 13 case was filed, the debtor then “did not retain title, possession or any other functionally equivalent ownership interest in the repossessed automobile.” Id. at 1284. However, Leivis really “looked to Alabama common law, and decisions finding that a debtor must have both title to and possession of a property in order to maintain an action for conversion .... ” Spears, 223 B.R. at 164. Based on Alabama law, “Lewis made" } ]

[ { "docid": "18701347", "title": "", "text": "containers, but the application at bar, No. 337006, does not so specify. So, the question here presented is whether the trade-mark “EA”, when used on rouge, sun-tan-oil, talcum powder, perfumes and bath salts, so nearly resembles appellant’s “EAM” mark when used upon its goods above specified, which include powder boxes, rouge boxes, compact boxes, powder containers, perfume containers, and soap receptacles as to be likely to cause, confusion within the meaning of the statute. The Examiner of Interferences held that the opposer’s metal products are not goods of the same descriptive properties as the toilet preparations in connection with which applicant uses the mark here sought to be registered, and dismissed the opposition. Upon appeal, the Commissioner of Patents held that the marks involved lack of “deceptive similarity” and called attention to the plain printing of the mark “EAM” and the distinctive arrangement of the letters “EA”. He also held that the goods to which the parties applied their respective marks were of different descriptive properties, and affirmed the decision of the Examiner of Interferences in dismissing the opposition. Elgin American appealed here from the decision of the commissioner. In the decision of the commissioner is the following: * * * It would require a very distorted meaning of terms to say tliat a cake of soap belongs to the same general class as a metal soap box, or that an ounce of perfume has characteristics in common with its ornamental container. Once that be held it would necessarily follow that barrels and beer are of the same descriptive properties; likewise bottles and pickles, crates and eggs, bags and flour, etc. I have found no case that goes to that length, and. in the absence of a binding judicial pronouncement to the contrary my own opinion is that no such meaning can properly be read into the language of the statute. We are not in agreement with the views of the commissioner that appellant’s powder boxes, and powder of the character sold by appellee, are not goods of the same descriptive properties or that the perfume containers sold by appellant" } ]

[ { "docid": "17194664", "title": "", "text": "for cancellation and recommended that the involved registration of appellee be can-celled. Upon appeal the commissioner, by his assistant, held that, while broadly speaking, wheat flour is of the same descriptive properties as fruit and fruit products, considering the difference in goods and the difference in marks, there was no probability of confusion between the marks. He therefore reversed the decision of the examiner and dismissed the petition of appellant. From such decision this appeal was taken by appellant. Appellee has made no appearance in this court It is a matter of common knowledge that both dried fruits and wheat flour are ingredients in certain kinds of pastry. That they are goods of the same descriptive properties Ave have no doubt, Sun-Maid Raisin Growers of California v. American Grocer Company, 17 C. C. P. A. (Patents) 1034, 40 F. (2d) 116; Cheek-Neal Coffee Co., etc. v. Hal Dick Manufacturing Company, 17 C. C. P, A. (Patents) 1103, 40 F. (2d) 106. The commissioner relied largely upon our decision in the case of Tetley & Co., Inc. v. Bay State Fishing Co., 23 C. C. P. A. (Patents) 969, 82 F. (2d) 299, wherein it was held that the marks “Budget Special,” applied to fish, and “Tetley Budget Tea,” applied to tea, the words “Special” and “Tea” being disclaimed, were not confusingly similar. The commissioner quoted from our opinion wherein we said: “In considering the mark of the opposer, the name “Tetley” is to be given as much force and effect as any other part of the marie.” We think that, properly construed, this expression does not imply that every word in a mark is to be given the same force and effect as any other part of the mark. It is well established that one word or feature of a mark may be the dominant portion thereof, and be given greater force and effect than other parts of the mark in determining confusing similarity between it and another mark used upon goods of the same descriptive properties. Baltimore Paint & Color Works v. Bennett Glass & Paint Co., 17 C." }, { "docid": "20098372", "title": "", "text": "regard to the context and the general purport of the opinions, might have indicated that the existence of confusion was the test by which we should determine whether the goods were of the same descriptive properties. How-ei^er, the cases should not be so read. When we consider the degree of similarity of the trade-marks and goods involved in those cases, the state of the facts and the general conclusions arrived at by the court, it will be seen that the court was endeavoring to give to the words “same descriptive properties” a reasonable application and meaning, in order to effectuate the purposes of the registration act, and did not have in mind the virtual elimination of the words from the statute. Many cases have been passed upon by this court since the last two cases above cited, and from these cases we may readily deduce the meaning which this court has applied to the statutory words, “merchandise of the same descriptive properties.” On the same day that the last two cases were decided, this court handed down the decision in Cheek-Neal Coffee Company et al. v. Hal Dick Mfg. Co., supra. In that case the applicant was attempting to register a mark comprising a composite picture including a representation of a hotel, the words “Maxwell House,” and other words arranged in a distinctive way, used as a trade-mark upon horse-radish, olive spread, and similar relishes. The opposer relied upon prior use of a trade-mark practically identical with the preceding mark used upon coffee and tea. The question for this court to determine was whether the goods were of the same descriptive properties. We held that the goods were of the same descriptive properties, saying, in part: “We may take judicial notice of the fact that the goods of both parties are commonly known as groceries, sold in the same stores and to the same class of purchasers.” Being of the opinion that the goods possessed the same descriptive properties, on the authority of B. F. Goodrich Co. v. Clive E. Hockmeyer et al., supra, we held that the notice of" }, { "docid": "22210506", "title": "", "text": "of a palm tree, in a trade-mark, to the exclusive use of such word or representation; and that appellee was entitled to the registration of its mark consisting of the words “Palm-Knit” accompanied by a representation of a palm tree in a rectangle, for use on goods possessing the same descriptive properties as those on which appellant’s mark was used. In concluding its opinion, the court said: “ ‘ * * * Both these features, the word “Palm” and the representation of a tree, were used prior to opposer’s adoption and use of its mark, and these are the only features which are common to the mark of the applicant and that of the opposer.’ “As the Patent Office found, ‘Palm-Knit’ differs from ‘Palm Beach’ more than ‘Palm Beach’ differs from ‘Palm Island.’ ” Section 5 of the Trade-Mark act of February 20, 1905 (15 USCA § 85), provides» in part, as follows: “See. 5. That no mark by which the goods of the owner of the mark may be distinguished from other goods of the same class shall be refused registration as a trade-mark on account of the nature of such mark unless such mark— * * * Provided, That trade-marks which are identical with a registered or known trade-mark owned and in use by another and appropriated to merchandise of the same descriptive properties, or which so nearly resemble a registered or known trade-mark owned and in use by another and appropriated to merchandise of the same descriptive properties as to be likely to cause confusion or mistake in the mind of the public or to deceive purchasers shall not be registered. * * * ” Without attempting to distinguish the decisions in the cases hereinbefore referred to, It is plain that they must be considered in the light of the quoted statutory provisions. In none of those cases were the involved trade-marks identical. Considering the provisions of the second clause of the quoted proviso, together with the apparent lack of similarity of the involved marks and the language of the court, it is evident that those decisions" }, { "docid": "4179129", "title": "", "text": "to trade testimony- — because it could not, from mere inspection of the trade-marks and the goods, know of the effect; and the court could not, without recourse to trade testimony, have found that the goods were sold in the same stores, were put out in small containers, were used in connection with each other and were associated in the public mind; such facts could not have been determined from mere inspection of the marks and the goods. Moreover, reference to the record in the case discloses that trade testimony was introduced on the subject of likelihood of confusion. On the same day that the court-decided the California Packing Corporation case it also decided Application of B. F. Goodrich Co., 1923, 52 App.D.C. 261, 285 F. 995. There the word “Safety” had been refused registration by the Commissioner of Patents as a trade-mark for pneumatic tire casings made of rubber combined with fabric on the ground that the word had been previously registered for conducting hose composed of rubber and fabric. The Commissioner ruled that the latter goods were of the same descriptive properties as those on which the applicant used its mark. On appeal the court upheld this ruling on the ground that: “... if the use of the marks by the contending parties would be likely to lead the public to believe that the goods to which they are applied were produced by the same person or concern, it must be so because the goods possess the same descriptive properties. California Packing Corp. v. Price-Booker Manufacturing Co., 52 App.D.C. 259, 285 F. 993.\" [Italics supplied] [52 App.D.C. at 262, 285 F. at 996] In American Tobacco Co. v. Gordon, 1925, 56 App.D.C. 81, 10 F.2d 646, Gordon applied for the registration of the words “Pall Mall” for pipes, cigar and cigarette holders, pouches, tobacco bags, humidors and cigar and cigarette containers. The Americán Tobacco Company opposed because it had used the same words as a trade-mark for cigarettes. The court held that these two types of goods were of different descriptive properties, saying: “We have ruled that two" }, { "docid": "14539737", "title": "", "text": "of the words “ American Beauty Rose,” associated with the representation of a rose, and in the other instance the mark consists of the words “American Beauty ” and a representation of roses. The issue here is plain. It must be remembered that the statute in part reads: * * * provided, That tracle-marks which are identical with a registered or known trade-mark owned and in use by another and appropriated to merchandise of the same descriptive properties, or which so nearly resemtle a registered or known trade-mark owned and in use by another and appropriated to merchandise of the same descriptive properties as to he likely to cause confusion or mistake in the mind of the public or to deceive purchasers shall not be registered: ⅜ * ⅝ (Last italics ours.) The mandate of the statute is compelling and the newcomer must be denied registration if his mark so nearly resembles the mark of the owner of a registered trade-mark as to lead to confusion, when used upon goods of the same descriptive properties. Appellee’s main argument here is to the effect that the doctrine laid down in the cases of Pabst Brewing Co. v. Decatur Brewing Co., 284 Fed. 110, and France Milling Co. v. Washburn-Crosby Co., Inc., 7 F. (2d) 304, is applicable to the issue at bar, and has pointed out 22 registrations of the words “American Beauty ” for different food and grocery products, some of which registrations were said to be made prior to the registration of appeallant and several of which registrations preceded the first rise by appellant. These registrations were neither introduced in evidence nor submitted to this court, but are only named in the answer to the notice of opposition. In view of our conclusions, we do not deem it necessary to determine whether, strictly speaking, they are before us for consideration. Since the Commissioner based his decision, in part, upon this phase of the case, we think it advisable to restate this court’s position in respect thereto. It is contended by appelle that since the National Biscuit Co., appellant, in" }, { "docid": "14539739", "title": "", "text": "selecting the trade-mark “American Beauty,” entered a field which already had been entered by others using the trademark “American Beauty,” it is limited in the use of its trade-mark and in the protection afforded for it to the narrow scope of the goods upon which it actually uses it, and that in determining whether or not there is a likelihood of confusion, this court and the Patent ■Office must take into consideration the fact that purchasers are cognizant of the extensive and broad use of the trade-mark “American Beauty,” and that in such an instance confusion is not probable. Without questioning in the least the correctness of the doctrine laid down in the two cases last cited, when applied in cases like those before the Circuit Courts of Appeals in the trial of the so-called Blue Ribbon and Gold Medal cases, we regard ourselves as confronted with an entirely different problem. In the equity cases cited the question of use was involved. In this court the right to register is the issue at bar. True enough we have said, in substance, that a trade-mark which can not be defended in the common law is not entitled to registration, but this is not saying that all trademarks which can be defended in the common law, in view of the wording of the statute, are entitled to registration. In Sharp & Dohme v. Parke, Davis & Co., 17 C. C. P. A. (Patents) 842, 37 F. (2d) 960, this court said: This statute is plain and definite. If the mark which applicant seeks to register upon goods of the same descriptive properties is the same as an ■opposer’s registered mark, then the applicant’s mark can not be registered. It is unimportant what rights others may have as against the opposer’s mark— the applicant has no right to assert them in such proceeding. The same principle would be applicable to known owned unregistered trade-marks. In California Packing Corp. v. Tillman & Bendel, Inc., supra, where the use of identical trade-marks, “ Del Monte,” was under consideration, this court said: Appellee argues at great" }, { "docid": "18708343", "title": "", "text": "Lenroot, Judge, delivered the opinion of the court: This is an appeal from a decision of the Commissioner of Patents, affirming a decision of the examiner, denying’appellant’s application for registration of the mark “TIMELY” as a trade-mark for men’s suits, topcoats, and overcoats, made from cloth or woolen fabrics. The basis of the rejection of appellant’s application, by both of the Patent Office tribunals, is registration No. 291,742, issued February 23, 1932 to F. M. Hoyt Shoe Corporation, said registration being for the mark “TIMELY” as a trade-mark for “Boots and Shoes made wholly or in part of leather, fabrics, or combinations thereof.” The word “TIMELY” in said registration is shown to be in capital letters, the horizontal line of the “T” being extended in something of a Sourish over most of the balance of the word; similarly, the tail of the “Y” concluding the word is extended back and beneath the two preceding letters of the word. The mark as shown in appellant’s application is formed of ordinary block letters. Both tribunals of the Patent Office held that, the marks being identical, the sole issue was whether the goods to which the marks were applied were goods of the same descriptive properties, found that they were, and denied registration to appellant. Their decisions were in each instance based upon decisions of this court which were relied upon as warranting the view that the suits, topcoats and overcoats to which appellant applies its mark are goods of the same descriptive properties as the shoes to which the prior registrant applies its mark. Since we are clear that the differences in the style of type shown in the marks covered by the instant application and the registration above cited are so slight as to warrant the holding of the tribunals below that the marks are identical, and no issue is raised upon this point, we agree with those tribunals that the sole issue in the case is whether or not the goods of the respective parties are of the same descriptive properties. We will first consider a contention made by appellant’s" }, { "docid": "23694065", "title": "", "text": "the registration of appellant’s mark. Both parties took testimony. It appears therefrom that appellee’s mark “Kurlash” is applied to an instrument for curling eyelashes, while appellant’s mark is applied to mascara, a cosmetic used on eyelashes; it further appears that mascara and eyelash curlers are sold in the same stores and to the same class of people. The examiner dismissed the notice of opposition and adjudged that appellant was entitled to the registration of the mark applied for, holding that the marks may be concurrently used upon the goods of the respective parties without reasonable likelihood of confusion. Upon appeal by the opposer, the commissioner reversed the decision of the Examiner of Interferences, and sustained the opposition, of appellee, holding that the marks involved are used upon goods possessing the same descriptive properties and are confusingly similar. From this decision appellant has taken this appeal. Both parties cite many cases in support of their respective contentions. The commissioner held that the marks here involved are not more dissimilar than the marks “Rotex” and “Kotex,” which, in the case of Kotex Co. v. McArthur, 18 C. C. P. A. (Patents) 787, 45 F. (2d) 256, we held to be confusingly similar, applied to goods possessing the same descriptive properties. Obviously, in cases of the character before us, only general principles' of law are applicable, and after being applied it is very largely a matter of opinion whether two marks used upon goods of the same descriptive properties are confusingly similar. The Procter & Gamble Co. v. J. L. Prescott Co., 18 C. C. P. A. (Patents) 1433, 49 F. (2d) 959. We have no hesitation in holding that the goods to which the respective marks are applied possess the same descriptive properties, and we do not deem it necessary to cite authorities in support of this holding. At the same time it is proper, in considering the question of confusion, to recognize the differences in the goods. Duro Pump & Mfg. Co. v. Thomas Maddock's Sons Co., 17 C. C. P. A. (Patents) 785, 36 F. (2d) 1005; Fashion Park, Inc." }, { "docid": "22389921", "title": "", "text": "for sale “Del Monte” coffee or any other kind of eoffee in one pound tins. Applicant’s proposed trade-mark not only calls for the use of the name “Del Monte,” but it is to be used on tin containers, vacuum-sealed, labeled “net contents one pound.” Applicant contends that it is entitled to register its proposed “Del Monte” trademark for two reasons: First, because eoffee is not of the same descriptive properties as any of the goods produced and sold under the name “Del Monte” by appellant, and therefore comes within the provision of section 5 of the Trade-Mark Act of 1905 (15 USCA § 85), which provides that “no mark by which the goods of the owner of the mark may be distinguished from other goods of the same class shall be refused registration,” etc.; second, that appellant has never used the trade-mark on eoffee, or goods of the same descriptive properties, and that appellee has, since prior to the early “ ’90’s,” used the words “Del Monte” as a trade-mark on coffee, and that it has continuously used the said mark on coffee to this date. The first proviso in section 5, supra, is as follows: “Provided, That trade-marks which are identical with a registered or known trademark owned and in use by another and appropriated to merchandise of the same descriptive properties, or which so nearly resemble a registered or known trade-mark owned and in use by another and appropriated to merchandise of the same descriptive properties as to he likely to cause confusion or mistake in the mind-of the public or to deceive pu/rchasers shall not he registered. * * * ” (Italics not quoted with exception of first word.) The trade-marks are identical and if the goods upon which applicant seeks to use the trade-mark are “of the same descriptive properties as to he likely to cause confusion,” etc., registration must be denied, and our determination of this question, we think, decides this case. Thousands of pages have been written by the courts in construing the last-quoted provision and there are but few statutory phrases which have" }, { "docid": "20098371", "title": "", "text": "effect which it evidently was desired to accomplish, namely, to prevent confusion. In connection with our discussion of this matter, Ave said this: * * * and that, keeping in mind the principles of equity as applied to the law of trade-marks, the words “same class” and “same descriptive properties” were intended to be given a limited or an extended meaning and application, according to whether or not the use of identical or similar trade-marks would be likely to cause confusion or mistake in the mind of the public or to deceive purchasers. And, of course, in this connection, the use, appearance, and structure of the articles, the similarity or the lack of similarity of the packages or containers in which, the place or places where, and the people to whom, they were sold should be considered. Finally we held that the goods were of the same general class and “that they possess the same descriptive properties.” It is true that in both the preceding cases, there were expressions Avliich, taken by themselves, and without regard to the context and the general purport of the opinions, might have indicated that the existence of confusion was the test by which we should determine whether the goods were of the same descriptive properties. How-ei^er, the cases should not be so read. When we consider the degree of similarity of the trade-marks and goods involved in those cases, the state of the facts and the general conclusions arrived at by the court, it will be seen that the court was endeavoring to give to the words “same descriptive properties” a reasonable application and meaning, in order to effectuate the purposes of the registration act, and did not have in mind the virtual elimination of the words from the statute. Many cases have been passed upon by this court since the last two cases above cited, and from these cases we may readily deduce the meaning which this court has applied to the statutory words, “merchandise of the same descriptive properties.” On the same day that the last two cases were decided, this court" }, { "docid": "17194665", "title": "", "text": "Inc. v. Bay State Fishing Co., 23 C. C. P. A. (Patents) 969, 82 F. (2d) 299, wherein it was held that the marks “Budget Special,” applied to fish, and “Tetley Budget Tea,” applied to tea, the words “Special” and “Tea” being disclaimed, were not confusingly similar. The commissioner quoted from our opinion wherein we said: “In considering the mark of the opposer, the name “Tetley” is to be given as much force and effect as any other part of the marie.” We think that, properly construed, this expression does not imply that every word in a mark is to be given the same force and effect as any other part of the mark. It is well established that one word or feature of a mark may be the dominant portion thereof, and be given greater force and effect than other parts of the mark in determining confusing similarity between it and another mark used upon goods of the same descriptive properties. Baltimore Paint & Color Works v. Bennett Glass & Paint Co., 17 C. C. P. A. (Patents) 1269, 40 F. (2d) 1009. There is no conflict between this rule and the equally well-established rule that, in determining the question of confusing similarity between marks, they must be considered in their entirety. A case very similar to that at bar is that of Hellman, Inc. v. Oakford & Fahnestock, 19 C. C. P. A. (Patents) 816, 54 F. (2d) 423. The marks there involved were “Blue Ribbon,” used by the appellee (here, and “Bichard Heilman’s Blue Ribbon,” used by the appellant there, both marks being used upon goods of the same descriptive properties. In our opinion, affirming the decision of the commissioner, we said: . * The marks are so similar .that if applied to identical goods or goods of the same descriptive properties, confusion would be likely. Under such circumstances it was the duty of the commissioner to refuse registration of the appellant’s mark. There, as here, the only important distinguishing difference between the two marks was the name of an individual. In that case the dominant part" }, { "docid": "20098369", "title": "", "text": "in the marks or goods or both must exist so as to distinguish the goods of the owner as is required to prevent the probability of “confusion or mistake in the mind of the public,” etc. This distinguishing difference or indistinguishable similarity may rest not only in the “essential characteristics” of the goods themselves with reference to their form, composition, texture, and quality, but may rest in the use to which they are put, the manner in which they are advertised, displayed, and sold, and probably other considerations. The question as to whether confusion and failure to distinguish will result may also depend largely upon the class of purchasers or persons concerned. Again we said, in summing up: * * * The goods being of the same descriptive properties, so that the registration of the proposed trade-mark will lead to confusion, the statute requires that registration be denied, irrespective of other legal rights between the parties. * * * On the same date that the California Packing Corp v. Tillman & Bendel, Inc. case, supra, was decided, this court decided the case of B. F. Goodrich Co. v. Clive E. Hockmeyer et al., 17 C. C. P. A. (Patents) 1068, 40 F. (2d) 99. We further developed our views as to the proviso in question. In the last named case, the appellant had used the name “Zipper” as a trade-mark for boots and overshoes made of rubber and fabric, and was seeking to cancel a registration to the appellee of the trade-mark “Zip-On” for use on leggings, knickerbockers, rompers, and the like. The tribunals of the Patent Office held that the goods of the respective parties were not of the same descriptive properties, and this court was called upon to review that finding. In so doing, the court held that the language, “goods of the same class,” contained in said section 5, should be construed as having the same meaning and application as the words “merchandise of the same descriptive properties” found in the proviso. Such a construction the court felt was necessary in order to give the statute the" }, { "docid": "10278916", "title": "", "text": "milk made by the “spray” process is probably suitable for household use. The description of the goods as shown in the application to be ■“dry skimmed milk” was believed by the examiner to be controlling upon the question of the identity of the goods of appellee, here in issue, sold under the trade-mark “Certora.” Upon the record the examiner stated as follows: Nevertheless, the differences in the specific characteristics of the respective goods and the differences in the marks are here deemed to he cumulative. The examiner is persuaded that the cumulative effect of these differences is sufficient to justify the conclusion that the marks may he honestly used in trade by the parties without any reasonable likelihood of confusion. The record seems to .show that the applicant adopted and has used the mark it seeks to register in good faith and it must be here presumed that it will continue to be honestly used by the latter. In accordance with his above quoted reasons, the Examiner of Interferences held that appellee is entitled to the registration for which it .applied. The decision of the commissioner held that the marks of the parties are obviously quite similar but that the respective goods are not of the same descriptive properties, citing as authority B. F. Goodrich Co. v. Hockmeyer et al., 17 C. C. P. A. (Patents) 1068, 40 F. (2d) 99, and for this reason the decision of the Examiner of Interferences was affirmed. We agree with the commissioner that the words “Certo” and “Cer-tora” are quite similar, but in view of the wording of the application we cannot hold that the goods to which “Certora” may be applied are not of the same descriptive properties as those to which “Certo” is applied. It may be, as was held by the commissioner, that dry skimmed milk made by the “roller” process, sold directly to the baking and milk chocolate trade in 200-pound barrels, does not possess the same descriptive properties as the goods of the appellant. But appellee in its application does not limit the use of the word “Certora”" }, { "docid": "14539740", "title": "", "text": "enough we have said, in substance, that a trade-mark which can not be defended in the common law is not entitled to registration, but this is not saying that all trademarks which can be defended in the common law, in view of the wording of the statute, are entitled to registration. In Sharp & Dohme v. Parke, Davis & Co., 17 C. C. P. A. (Patents) 842, 37 F. (2d) 960, this court said: This statute is plain and definite. If the mark which applicant seeks to register upon goods of the same descriptive properties is the same as an ■opposer’s registered mark, then the applicant’s mark can not be registered. It is unimportant what rights others may have as against the opposer’s mark— the applicant has no right to assert them in such proceeding. The same principle would be applicable to known owned unregistered trade-marks. In California Packing Corp. v. Tillman & Bendel, Inc., supra, where the use of identical trade-marks, “ Del Monte,” was under consideration, this court said: Appellee argues at great length that it should be permitted to register its trade-mark because it was the prior user on coffee as stated hereinbefore, apparently from the standpoint that our decision as to the registrability' of its trade-mark in this action would be controlling of its right to use the name ■“ Del Monte ” on coffee. We are only concerned in this action with appellee’s right of registration of the trade-mark and not with its use of the same. As to whether appellee, in law, has the right to use the trade-name “ Del Monte ” on coffee in containers of any description, or whether it has the right to use it in markets confined to the West coast or throughout the world, are questions not before us and are' not decided. We do -decide that such a statement of facts is not shown here as would warrant this court in saying that appellee was entitled to the exclusive use of the words on coffee, the right to such exclusive use being implied from the right to" }, { "docid": "17194666", "title": "", "text": "C. P. A. (Patents) 1269, 40 F. (2d) 1009. There is no conflict between this rule and the equally well-established rule that, in determining the question of confusing similarity between marks, they must be considered in their entirety. A case very similar to that at bar is that of Hellman, Inc. v. Oakford & Fahnestock, 19 C. C. P. A. (Patents) 816, 54 F. (2d) 423. The marks there involved were “Blue Ribbon,” used by the appellee (here, and “Bichard Heilman’s Blue Ribbon,” used by the appellant there, both marks being used upon goods of the same descriptive properties. In our opinion, affirming the decision of the commissioner, we said: . * The marks are so similar .that if applied to identical goods or goods of the same descriptive properties, confusion would be likely. Under such circumstances it was the duty of the commissioner to refuse registration of the appellant’s mark. There, as here, the only important distinguishing difference between the two marks was the name of an individual. In that case the dominant part of appellant’s mark was “Blue Ribbon,” which was the dominant part of the mark of appellee. In the case at bar (he dominant part of appellee’s mark is the notation “SUNSWEET,” which is the dominant part of appellant’s mark. In addition, both marks here involved have a representation of the sun. We have no hesitation in holding that the marks of the parties are confusingly similar, and that appellant has been damaged by the registration of appellee’s mark. To hold otherwise would make it possible for one to' appropriate a trade-mark which, through extensive advertising, had become a household word, by adding thereto the name of an individual. Many others might do likewise and the value of the trade-mark to the first adopter and user might be largely destroyed. We hold that, upon the record before us, the petition of appellant ■should have been sustained, and the decision of the commissioner is T&versed: Jackson, Judge, dissents." }, { "docid": "13917035", "title": "", "text": "here is solely as to confusion in trade when the marks are used upon the respective items or goods. It is thought since both parties use not only the-words “ Blue Ribbon ” and the representations of such a ribbon but also a blue-ribbon bow, there would be confusion if these marks appeared upon the goods of the respective parties in the same market. In National Biscuit Co. v. Joseph W. Sheridan, 18 C. C. P. A.. (Patents) 720, 724, 44 F. (2d) 987, this court said: Without questioning in the least the correctness of the doctrine laid down in the two cases last cited [Pabst Brewing Co. v. Decatur Brewing Co., 284 Fed. 110, and France Milling Co. v. Waslhburn-Crosby Co., Inc., 7 F. (2d) 304], when applied in cases like those before the Circuit Court of Appeals in the trial of the so-called Blue Ribbon and Gold Medal cases, um regard ourselves as confronted with an entirely different problem. In the equity cases cited the question of use was involved. In this court the right to register is the issue at bar. True enough we have said, in substance, that a trade-mark which can not be defended in the common law is not entitled to registration, but this is not saying that all trade-marks which can be defended in the common law, in view of the wording of the statute, are entitled to registration. In Sharp & Dohme v. Parke, Davis & Co., 17 C. C. P. A. (Patents) 842, 37 F. (2d) 960, this court said: “ This statute is plain and definite. If the mark which applicant seeks to register upon goods of the same descriptive properties is the same as an op-poser’s registered mark, then the applicant’s mark can not be registered. It is unimportant what rights others may have as against the opposor’s mark — the applicant has no right to- assert them in such proceeding. The same principle would be applicable to known owned unregistered trade-marks.” Some of the goods of both parties are identical; both parties sell salad dressings under the “" }, { "docid": "20098370", "title": "", "text": "was decided, this court decided the case of B. F. Goodrich Co. v. Clive E. Hockmeyer et al., 17 C. C. P. A. (Patents) 1068, 40 F. (2d) 99. We further developed our views as to the proviso in question. In the last named case, the appellant had used the name “Zipper” as a trade-mark for boots and overshoes made of rubber and fabric, and was seeking to cancel a registration to the appellee of the trade-mark “Zip-On” for use on leggings, knickerbockers, rompers, and the like. The tribunals of the Patent Office held that the goods of the respective parties were not of the same descriptive properties, and this court was called upon to review that finding. In so doing, the court held that the language, “goods of the same class,” contained in said section 5, should be construed as having the same meaning and application as the words “merchandise of the same descriptive properties” found in the proviso. Such a construction the court felt was necessary in order to give the statute the effect which it evidently was desired to accomplish, namely, to prevent confusion. In connection with our discussion of this matter, Ave said this: * * * and that, keeping in mind the principles of equity as applied to the law of trade-marks, the words “same class” and “same descriptive properties” were intended to be given a limited or an extended meaning and application, according to whether or not the use of identical or similar trade-marks would be likely to cause confusion or mistake in the mind of the public or to deceive purchasers. And, of course, in this connection, the use, appearance, and structure of the articles, the similarity or the lack of similarity of the packages or containers in which, the place or places where, and the people to whom, they were sold should be considered. Finally we held that the goods were of the same general class and “that they possess the same descriptive properties.” It is true that in both the preceding cases, there were expressions Avliich, taken by themselves, and without" }, { "docid": "18708346", "title": "", "text": "the registration of a mark which is “identical with a registered or known trade-mark owned and in use by another and appropriated to merchandise of the same descriptive properties * * Manifestly it was the duty of the Patent Office tribunals in the case at bar to determine whether the goods to which appellant applies its mark are of the same descriptive properties as the goods to which the previously registered-mark is applied; or, in other words, whether, for the purposes of said trade-mark act, the shoes here involved are of the same descriptive properties as men’s suits, topcoats, and overcoats, made from cloth or woolen fabrics. The meaning of the phrase “merchandise of the same descriptive properties,” as used in said trade-mark act, has been many times considered by this court, and while it is true, as stated by appellant’s counsel, that such consideration has always occurred in inter partes proceedings, we cannot assent to the proposition that the construction of this language is dependent upon the nature of the proceeding brought in which it is considered. Nothing in any of the cases decided by this court, or by any other court so far as we are able to discover, has indicated that the construction of said phrase “merchandise of the same descriptive properties” should be different in an ex parte proceeding than in an inter partes proceeding. A most anomalous situation might result if appellant’s suggestion were followed in the case at bar. Under that theory, in determining the question, of whether the shoes here involved are of the same descriptive properties as men’s suits, topcoats and overcoats made from cloth or woolen fabrics, we could not in this case consider the question of confusion as to origin of the goods; with the issue thus restricted we might hold that appellant’s application should be passed for publication. Thereupon, if the prior registrant, F. M. Hoyt Shoe Corporation, should file a notice of opposition alleging that the shoes to which its mark is applied are of the same descriptive properties as the goods to which appellant applies its mark," }, { "docid": "16825616", "title": "", "text": "LENROOT, Associate Judge. This is an appeal in a trade-mark opposition proceeding from a decision of the Commissioner of Patents affirming a decision of the Examiner of Trade-Mark Interferences dismissing appellant’s notice of opposition to the registration by appellee of the words “Toilet-San” for “Porcelain Cleaner in Powder Form.” Appellee’s application was filed October 10, 1940. It states: “The trademark is applied or affixed to the goods, or to |he package containing the same by lithographing the trademark on the container. The word ‘Toilet’ is hereby disclaimed apart from the mark as shown.” The application further states that the mark had been continuously applied to applicant’s goods since 1925. Appellant’s notice of opposition alleged ownership of the trade-mark “Sani-Flush” and registration of the same on April 9, 1912, for cleaning powder, the same being numbered 86,062. It further alleged continuous use of said mark since April 1911 on cleaning powder for water-closet bowls made of porcelain; that the dominant characteristic of both appellant’s and opposer’s mark is “the non-descriptive word ‘San’ upon a yellow panel.” The usual allegations of confusing similarity of the marks and damage to opposer were also made. Both parties submitted stipulated testimony. The Examiner of Interferences dismissed the notice of opposition and further held that appellee was entitled to register its mark. In his decision he held that appellant had established use of its mark upon cleaning powder long prior to the earliest date claimed by appellee of use of its mark upon like goods. He further held that the respective marks were applied to goods of the same descriptive properties, but that they are not confusingly similar. Upon appeal to the commissioner, the decision appealed from was affirmed. In his decision the commissioner stated: “The goods are inexpensive and are of. the type that are purchased by the public generally and are not apt to be purchased with great discrimination or care. “The examiner held the marks to be so different from each other as not to be confusingly similar. It is recognized that the word ‘Toilet’ of the mark ‘Toilet-San’ is merely descriptive of" }, { "docid": "5129535", "title": "", "text": "Cole, Judge, delivered the opinion of the court: Appellant herein applied for registration of the mark “Plus 30,1” establishing use thereof since 1944, and alleged said mark to be a fanciful designation, arbitrarily selected. The appellee-opposer, a competitor of the applicant dealing in similar goods, urges that the mark is descriptive of the goods in question and consequently alleges that registration of applicant’s mark would be injurious to opposer’s business interests. The Commissioner of Patents, affirming the decision of the Examiner of Trade Mark Interferences, held that “Plus 30,” as applied to cosmetics, and more particularly to face creams, was descriptive and hence not registrable within the meaning of the Trade-Mark Act of 1905. This is an appeal from that decision. The notice of opposition contained eight grounds, number eight being the only one upon which, we assume, the reasons for the decision being reviewed here were intended to apply. It reads: Opposer alleges that applicant was not entitled to tbe use or registration of the mark in application Serial No. 472,499 at the time of its application for registration thereof because the mark is descriptive of the goods. [Italics ours.] It will be noted that not a word is said in the ground assigned about “Plus 30” being descriptive of a class of purchasers for whom such goods are intended. Some acceptable construction of the involved statute by recognized authority must be found to exist in order to extend or expand the statutory limitation, i. e., “descriptive of the goods” to prohibit the registration of a mark that is descriptive of the class to whom sold. This is the first time we have been called upon to interpret the same, but the Patent Office has previously done so and cited its reasoning therein as sufficient to inject into the instant case, in a most decisive fashion, that a mark is to be rejected under the law cited if it is descriptive of the class to whom sold. In denying registration, the Examiner of Interferences said: * * * it is well settled that a marls is descriptive not only" } ]

[ { "docid": "23697709", "title": "", "text": "motion, and imposed a fifty-four month sentence, holding that a four-level upward departure was justified by the injury to a third-party victim. This sentence was identical to the original sentence ■ previously reversed by this Court. In imposing this sentence, the district court expressed its disagreement with our prior decision. Moore appeals, challenging the use of the misdemeanor offense to increase his criminal history category, the use of Officer Ollie’s injury to justify upward departure, and the fact that he received the identical sentence on resentencing. Discussion I. Similarity of Prior Offense Moore contends that because his pri- or conviction for evading arrest is similar to the crime of resisting arrest, but dissimilar to the instant conviction of assaulting a police officer, he should not have received a one-point increase in his criminal history category shifting him from category I to category II under U.S.S.G. § 4A1.2(c). In reviewing this claim, “we must accept the factual findings of the district court unless clearly erroneous, but we review de novo the application of the guidelines for errors of law.” United States v. Lara, 975 F.2d 1120, 1123 (5th Cir.1992). U.S.S.G. § 4A1.2(c) provides that “sentences for the following [listed] prior offenses and offenses similar to them, ... are counted only if ... (B) the prior offense was similar to an instant offense.” Listed prior offenses included “[hjindering or failure to obey a police officer, ... Resisting arrest.” Id. Thus, where a prior offense is not specifically listed under section 4A1.2(c), the offense, to be counted in the criminal history score, must be similar both to one listed in section 4A1.2(c) and to the instant offense on which the sentence is being computed. In United States v. Hardeman, 933 F.2d 278, 281-282 (5th Cir.1991), we created a “common sense” approach to determining whether a prior offense was similar to a listed offense for purposes of section 4A1.2(c). We applied the Hardeman test to determine whether the prior offense was similar to the instant offense in United States v. Schneider, Nos. 92-3023 & 92-2386, at 15 (5th Cir. Nov. 18, 1992) [979 F.2d" } ]

[ { "docid": "23285615", "title": "", "text": "Over-holt’s objections were untimely, the sentencing court could properly proceed as if no objection had been made. The court was entitled to rely upon the PSR without making independent factual findings. See United States v. Hardwell, 80 F.2d 1471, 1500 (10th Cir.1996) (district court not required to hear government’s objections to PSR first raised at sentencing hearing); United States v. Chung, 261 F.3d 536, 538-39 (5th Cir.2001) (district court not required to hear defendant’s objections to PSR first raised at sentencing hearing). 2. Criminal History Calculation. Overholt next challenges the determination of his criminal history category under the Sentencing Guidelines. The sentencing court set the category at level II based on two 1987 misdemeanor convictions in Oklahoma: (1) dispensing nonintoxicating alcoholic beverages without a license and (2) contributing to the delinquency of a minor. Overholt asserts that consideration of these offenses violated the Guidelines. In calculating a defendant’s criminal history category, the sentencing court must consider not only all felonies but also all misdemeanors and petty offenses, except as provided in U.S.S.G. § 4A1.2(c). Section 4A1.2 (c)(1) lists fifteen offenses that “are counted only if (A) the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense.” Section 4A1.2 (c)(2) lists six offenses that are never considered: hitchhiking, juvenile status offenses and truancy, loitering, minor traffic infractions, public intoxication, and vagrancy. Any prior offense that is “similar” to a listed offense in either category is also excluded. U.S.S.G. § 4A1.2(c)(l)-(2). Because Overholt failed to raise his challenge in district court, we review only for plain error. United States v. Whitney, 229 F.3d 1296, 1308 (10th Cir.2000). Overholt’s two offenses — dispensing nonintoxicating alcoholic beverages without a license and contributing to the delinquency of a minor — are not listed in § 4A1.2(c)(1) or (2). Therefore, Overholt’s challenge can succeed only if his offense is “similar” to one listed. In assessing similarity, we “examine whether the underlying behavior necessary to commit the prior misdemeanor shares the same general characteristics" }, { "docid": "4626726", "title": "", "text": "41 are meritless. Rivas next contends that the warrant was invalid because Texas Code of Criminal Procedure, Article 18.01(c) does not list justices of the peace as judicial officers empowered to issue search warrants under Article 18.02. The Government responds that this Court has held that the Texas Code of Criminal Procedure provides that justices of the peace are “magistrates” who are authorized to issue search warrants. United States v. Conine, 33 F.3d 467, 469 (5th Cir.1994); Tex. Code Crim.Proc.Ann. art. 2.09 (Vernon Supp. 1994). Rivas’s assertion that the affidavit attached to the state warrant did not establish probable cause is unsupported by any argument. Because issues that are raised on appeal but not briefed are deemed abandoned, this Court will not address this alleged point of error. See United States v. Gipson, 46 F.3d 472, 474-75 (5th Cir.1995). The district court’s factual determination that Rivas gave valid consent for the search of his home was not clearly erroneous. Further, Rivas did not establish that the warrant executed on the outside premises was invalid. We therefore conclude that the district court did not err in denying Rivas’s motions to suppress the evidence found during the search. SENTENCE ENHANCEMENT FOR MANAGERIAL ROLE The district court’s finding that a defendant played a managerial role in the offense is a factual finding that this Court reviews for clear error. United States v. Narvaez, 38 F.3d 162, 166 (5th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1803, 131 L.Ed.2d 729 (1995). Pursuant to U.S.S.G. § 3B1.1(c): “If the defendant was an organizer, leader, manager or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.” Subsections (a) and (b) discuss three and four-level enhancements for more aggravating roles. In this case, the evidence showed that Rivas obtained the vehicle used to transport the marijuana to Florida by extorting the vehicle from Juan Cano. Rivas attempted to recruit Cano into the conspiracy and succeeded in persuading Cano to locate a load of produce bound for Florida to facilitate the crime. Rivas has not shown that the district court’s" }, { "docid": "16406245", "title": "", "text": "Sentencing Guidelines, thereby affecting Alfaro’s substantial rights and the fairness of the judicial proceedings. See, e.g., Villegas, 404 F.3d at 364, 2005 WL 627963, at *7; Insaulgamt, 378 F.3d at 468 n. 17; Gracia-Cantu, 302 F.3d at 312. Accordingly, we conclude that the district court committed plain error when it imposed the sixteen-level sentence enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(ii), and we vacate Alfaro’s sentence and remand for resentencing. See Villegas, 404 F.3d at 364, 2005 WL 627963, at *7. B. Alfaro’s Criminal History Category With respect to Alfaro’s argument that the district court erred in assigning a criminal history point under U.S.S.G. § 4A1.2(c)(l) for his Texas state misdemeanor conviction for evading arrest, we note that both Alfaro and the government agree that the district court erred. As the government admits, under § 4A1.2(c)(l), a criminal history point should have been assigned to Alfaro’s prior conviction for evading arrest only if the conviction resulted in a sentence of probation for a year or more or imprisonment for thirty days or more. See U.S.S.G. § 4A1.2(c)(l); United States v. Moore, 997 F.2d 30, 33 (5th Cir.1993). Alfaro only received a sentence of ten days imprisonment for his evading arrest conviction. Thus, the district court erred in assigning a criminal history point for this offense. Because we vacate Alfa-ro’s sentence based on the sixteen-level enhancement, however, we need not address whether the court’s erroneous imposition of the criminal history point is plain error requiring reversal. C. The Constitutionality of 8 U.S.C. § 1326(b) Finally, Alfaro argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. §§ 1326(b)(1) and (2) are unconstitutional. While Alfaro notes that this argument appears to be foreclosed by the Supreme' Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), he contends that Almendarez-Torres was wrongly decided. In support of his argument, he claims that Justice Thomas, who provided a critical fifth vote in Almendarez-Torres, now appears to have repudiated his position in Almendarez-Torres. Thus, Alfaro concludes that five members of the Supreme Court now appear to be" }, { "docid": "11330931", "title": "", "text": "against a person. He has also failed to present any case wherein a Texas court accepted his interpretation of “force.” In the absence of case law supporting the interpretation proposed by Avalos-Martinez, we must rest on our interpretation of the plain language of the statute, which leads us to the conclu sion that “force” means force against people, not property. Therefore, we conclude that the crime of attempting to take a weapon from a peace officer has the use of force against a person as a necessary element, and that it qualifies as a crime of violence under U.S.S.G. § 2L1.2(b)(l)(A)(ii). The district court did not err in applying the sixteen-level enhancement. B. Criminal History Points The second argument that Avalos-Martinez makes on appeal is that the district court erred in assigning criminal history points to two of his prior convictions that occurred more than ten years prior to the instant offense and that resulted in less than one year and one month of imprisonment. Avalos-Martinez failed to make this objection before the district court and thus he acknowledges that our review is for plain error. See United States v. Espinoza, 677 F.3d 730, 735 (5th Cir.2012). To show plain error, AvalosMartinez must show (1) an error (2) that was clear or obvious (3) that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). A sentencing error affected a defendant’s substantial rights if there is a “reasonable probability that, but for the district court’s misapplication of the Guidelines, he would have received a lesser sentence.” United States v. John, 597 F.3d 263, 285 (5th Cir.2010) (internal quotation mark omitted). If Avalos-Martinez establishes plain error, we have the discretion to correct the error if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Puckett, 556 U.S. at 135, 129 S.Ct. 1423 (internal quotation marks omitted). Section 4A1.2(e) of the sentencing guidelines provides that a prior sentence imposed more than ten years before the commencement of the instant offense is not to be counted toward a defendant’s criminal history" }, { "docid": "19988962", "title": "", "text": "plain error. 1. Matos first argues that it was error to include in his criminal history his prior sentence of operating a motor vehicle after a suspended license and attaching wrong motor vehicle plates because he received a sentence of only ten days’ imprisonment, which was suspended, and a term of probation of only 90 days. U.S.S.G. § 4A1.2(e) states that misdemeanor and petty offenses are counted towards a defendant’s criminal history, but it excludes a group of enumerated offenses (and offenses “similar to them”) unless the sentence for the offense was a term of probation of at least one year or a term of imprisonment of at least thirty days, or the offense was similar to an instant offense. U.S.S.G. § 4A1.2(c) (2001). If a misdemeanor offense is not “similar to” one of the enumerated offenses, then it is counted regardless of the length of the sentence imposed. Here, Matos’s conviction for operating a motor vehicle after suspended license is clearly “similar to” the offense of “[d]riving without a license or with a revoked or suspended license” enumerated in Section 4A1.2(c)(1). U.S.S.G. § 4A1.2(c)(1) (2001). However, Matos was also convicted of attaching wrong motor vehicle plates. We find that the district court did not commit plain error in implicitly concluding that this offense was not “similar to” any of the Section 4A1.2(c)(1) offenses and assigning it one criminal history point. Cf. United States v. Caputo, 978 F.2d 972, 977-78 (7th Cir.1992) (holding that the offense of using a false driver’s license is “categorically more serious” and thus not similar to the 4A1.2(c)(1) offenses of “driving without a license or with a revoked or suspended license” and giving “false information to a police officer”); United States v. Guajardo, 218 Fed.Appx. 294, 297-98, 2007 WL 579914, at *2-3 (5th Cir. Feb. 12, 2007) (concluding that the offense of displaying a counterfeit inspection sticker was not similar to the offense of “driving without a license or with a revoked or suspended license”). We reach no conclusion as to whether the offense of attaching wrong motor vehicle plates is, in fact, similar to" }, { "docid": "16406244", "title": "", "text": "at 364, 2005 WL 627963, at *7. It then held that “[bjecause these two sentencing ranges do not overlap, the district court’s error necessarily increased [the defendant’s] sentence and thus affected his substantial rights.” Id.; see also Insaulgarat, 378 F.3d at 468 n. 17 (holding that because the district court’s error resulted in the imposition of a sen-fence substantially greater than the maximum otherwise permitted under the Sentencing Guidelines, the error affected the defendant’s substantial rights and the fairness of the judicial proceedings); Gracia-Cantu, 302 F.3d at 312 (same). In the present case, without the sixteen-level enhancement for committing a “crime of violence,” Alfaro at most would have been subject to an eight-level enhancement under § 2L1.2(b)(l)(C) for being convicted of an “aggravated felony.” Accordingly, he would have faced a sentencing range of, at most, fifteen to twenty-one months, far less than the fifty-month sentence he received. Thus, the district court’s error in the present case resulted in the imposition of a sentence that was substantially greater than would otherwise have been permitted under the Sentencing Guidelines, thereby affecting Alfaro’s substantial rights and the fairness of the judicial proceedings. See, e.g., Villegas, 404 F.3d at 364, 2005 WL 627963, at *7; Insaulgamt, 378 F.3d at 468 n. 17; Gracia-Cantu, 302 F.3d at 312. Accordingly, we conclude that the district court committed plain error when it imposed the sixteen-level sentence enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(ii), and we vacate Alfaro’s sentence and remand for resentencing. See Villegas, 404 F.3d at 364, 2005 WL 627963, at *7. B. Alfaro’s Criminal History Category With respect to Alfaro’s argument that the district court erred in assigning a criminal history point under U.S.S.G. § 4A1.2(c)(l) for his Texas state misdemeanor conviction for evading arrest, we note that both Alfaro and the government agree that the district court erred. As the government admits, under § 4A1.2(c)(l), a criminal history point should have been assigned to Alfaro’s prior conviction for evading arrest only if the conviction resulted in a sentence of probation for a year or more or imprisonment for thirty days or more. See U.S.S.G. §" }, { "docid": "5223775", "title": "", "text": "897 F.2d 1558, 1560 (10th Cir.), cert. denied, — U.S. -, 111 S.Ct. 88, 112 L.Ed.2d 60 (1990). I. The presentence report (PSR) assigned Mondaine a criminal history score of seven, which placed him in category IV. In calculating this score, the PSR included one point for a 1979 misdemeanor conviction in municipal court for which Mondaine received a fine of $100. Over Mondaine’s objection, the district court concluded that the applicable guideline did not exclude the municipal conviction from the calculation of Mondaine’s criminal history. A defendant is ordinarily sentenced under the guidelines in effect on the date of sentencing. See United States v. Saucedo, 950 F.2d 1508, 1512 (10th Cir.1991). Mondaine was sentenced on September 10, 1989. The relevant guideline provided that misdemeanor offenses are counted in a defendant’s criminal history score with the following exceptions, one of which Mondaine urges applies here: “Sentences for the following prior offenses and offenses similar to them, by whatever name they are known, are counted only if (A) the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense: Contempt of court Disorderly conduct or disturbing the peace Driving without a license or with a revoked or suspended license False information to a police officer Fish and game violations Gambling Hindering or failure to obey a police officer Leaving the scene of an accident Local ordinance violations Non-support Prostitution Resisting arrest Trespassing.” Guidelines, § 4A1.2(c)(l) (emphasis added). Mondaine argues that his 1979 misdemeanor conviction was for a local ordinance violation and that, under the guideline set out above, the conviction should not be counted because he did not receive a sentence of at least a year of probation or thirty days in jail. The district court disagreed, stating that a local ordinance violation does not fall within the quoted exclusion if it “mirrors a state misdemeanor law.” Rec., vol. IV, at 18. The plain language of the guideline states that local ordinance violations are excluded from the criminal history" }, { "docid": "7458991", "title": "", "text": "(§ 5K1.1); Huerta, 878 F.2d at 93-94 (§ 5K1.1 and § 3553(e)); Ayarza, 874 F.2d at 653 (§ 5K1.1); Musser, 856 F.2d at 1487 (§ 3553(e)). Lewis finally contends that the district court misapplied the guidelines by assessing one point to his criminal history category for his first OWI conviction. Lewis argues that in Wisconsin no jail sentence is authorized for a first offense of OWI. Therefore, according to Lewis, guideline § 4A1.2(c) excludes this conviction from his criminal history category. Lewis did not make the argument he makes now in the district court. Therefore, he has waived it for appeal. See United States v. Turner, 864 F.2d 1394, 1399 (7th Cir.1989). In any event, his argument is meritless. Section 4A1.2(c)(1) provides: (1) Sentences for the following prior offenses and offenses similar to them, by whatever name they are known, are counted [in a defendant’s criminal history category] only if (A) the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days ...: Contempt of court Disorderly conduct or disturbing the peace Driving without a license or with a revoked or suspended license False information to a police officer Fish and game violations Gambling Hindering or failure to obey a police officer Leaving the scene of an accident Local ordinance violations Non-support Prostitution Resisting arrest Trespassing Section 4A1.2(c)(l)’s list does not include operating a motor vehicle while intoxicated, nor is OWI by any stretch of the imagination “similar to” any of the offenses in the list. Therefore, § 4A1.2(c)(l)’s minimum sentence requirement does not apply to Lewis’ first OWI conviction. This result reflects the Sentencing Commission’s reasonable conclusion that even misdemeanor convictions for driving while intoxicated are serious enough that they should always count against a defendant’s criminal history, no matter how light the sentence imposed. See Application Note 5 to § 4A1.2. The district court did not err by assessing a criminal history point against Lewis for his first OWI conviction. For the above reasons, we affirm Lewis’ sentence. Affirmed. . In his opening brief, Lewis did not" }, { "docid": "19988964", "title": "", "text": "the Section 4A1.2(c)(1) offenses of “driving without a license or with a revoked or suspended license” or providing “false information to a police officer,” as Matos argues, but merely conclude that the district court did not plainly err in finding that the offenses were not similar and counting the attaching wrong motor vehicle plates offense toward Matos’s criminal history. 2. Matos also received one criminal history point for the offense of knowingly receiving stolen property, for which he was fined $100, and one point for the offense of larceny by check, for which he was fined $300. Matos argues that because these convictions resulted only in a fine, they should not have been included in his criminal history score. First, as to Matos’s conviction for receiving stolen property, it is not clear from the record whether the district court counted the offense as a felony or as a misdemeanor, but under either classification, the court did not commit error. The Guidelines provide that “[sjentences for all felony offenses are counted.” U.S.S.G. § 4A1.2(c) (2001). A “felony offense” is defined as “any federal, state, or local offense punishable by death or a term of imprisonment exceeding one year, regardless of the actual sentence imposed.” U.S.S.G. § 4A1.2(o) (2001). Under Massachusetts law, the crime of receipt of stolen goods is punishable for a first offense (if the value of the goods does not exceed $250, as the PSR states it did not in this case) by imprisonment of up to two and one-half years. See Mass. Gen. Laws ch. 266, § 60 (2000). Thus, it would have been proper for the district court to count Matos’s prior conviction for receiving stolen property as a felony offense under the Guidelines because it is punishable by a term of imprisonment exceeding one year. See United States v. Almenas, 553 F.3d 27, 31-32 (1st Cir.2009) (finding that district court correctly determined that defendant’s resisting arrest conviction was a “felony offense” under § 4A1.2(c) because it carried a punishment of up to two and one-half years’ imprisonment under Massachusetts law, and thus was “punishable by ..." }, { "docid": "22423450", "title": "", "text": "generally do not contribute to a criminal history score unless the sentence imposed was a term of probation of at least one year or a term of imprisonment of at least 30 days. Defendant claims that his conviction for criminal mischief is similar to disorderly conduct, one of the crimes listed in § 4A1.2(c)(l). However, Defendant was sentenced to six months, suspended, for the criminal mischief conviction. Thus, it is irrelevant whether criminal mischief is similar to disorderly conduct because the sentence imposed takes the conviction out of the exclusion in § 4A1.2(c)(l). Even though the sentence was suspended, the definition of “prior sentence” in the Guidelines includes suspended sentences for convictions that receive one criminal history point each. U.S.S.G. §§ 4Al.l(c), 4A1.2(a)(3). See United States v. Hernandez, 160 F.3d 661, 671 (11th Cir.1998). The criminal mischief conviction was properly counted. The aggravated-assault sentence should have been counted as two points under § 4A1.2(d)(2)(A). Defendant’s criminal history score was thus miscalculated by one point. Under the erroneous computation, Defendant received 12 points, placing him in Criminal History Category V. However, Criminal History Category V is assigned to those who score 10, 11, or 12 points. Defendant’s correct score was 11. This error is harmless because it does not change Defendant’s Criminal History Category. Therefore, Defendant is not entitled to any relief on account of this mistake. United States v. Sanders, 41 F.3d 480, 487 (9th Cir.1994). Nonetheless, because we remand for resentencing on different and independent grounds, the district court should make this correction. 4. The Enhancements for Victim Vulnerability and Physical Force Finally, Defendant challenges the enhancements that the district court applied for victim vulnerability and physical force. (a) Vulnerable Victims We consider first the vulnerable-victim enhancement. The district court increased Defendant’s offense level on all counts because it found that both victims, S.S. and R.K., were vulnerable. See U.S.S.G. § 3Al.l(b)(l). The application notes to U.S.S.G. § 3A1.1 state that the enhancement for targeting a vulnerable victim is not appropriate “if the factor that makes the person a vulnerable victim is incorporated in the offense guideline. For example," }, { "docid": "2057261", "title": "", "text": "to determine why Wilson could not be located before trial. We thus adhere to our general rule and decline to consider these claims on direct appeal. Gordon also argues that the district court erred in assessing two criminal history points for his house arrest. He argues that house arrest is not a “sentence of imprisonment” for purposes of § 4A1.1(b). He contends that without the erroneous two-point addition his criminal history score would have been nine points, making the guideline range 63 to 79 months rather than 77 to 96 months. Although Gordon states that he objected to the assessment of the two criminal history points, in fact, no objection was made to the application of § 4A1.1(b). We therefore review for plain error only. See United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To demonstrate plain error, an appellant must show clear or obvious error that affects his substantial rights; if he does, this court has discretion to correct a forfeited error that seriously affects the fairness, integrity, or public reputation of judicial proceedings, but we are not required to do so. United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.1994)(en banc)(citing Olano, 507 U.S. at 730-35, 113 S.Ct. 1770). Under § 4A1.1(b), two criminal history points are added “for each prior sentence of imprisonment of at least sixty days,” but. not exceeding 13 months. § 4A1.1(b); see also § 4A1.1(a). Under § 4A1.1(c), one criminal history point is assigned for sentences not counted in § 4A1.1(a) or (b). “The term ‘sentence of imprisonment’ means a sentence of incarceration and refers to the maximum sentence imposed.” § 4A1.2(b); see also § 4A1.1, comment, n.2 (noting that term “sentence of imprisonment” used in § 4Al.l(b) was defined in § 4A1.2(b)). “If part of a sentence of imprisonment was suspended, ‘sentence of imprisonment’ refers only to the portion that was not suspended.” § 4A1.2(b)(2). Chapter 4, part A of the Guidelines does not mention home detention. The Guidelines do address home detention elsewhere. Section 5C1.1 allows the sentencing judge to substitute home detention" }, { "docid": "2168550", "title": "", "text": "he raised no objection below to the inclusion of these two sentences in his criminal history score', our review is for plain error alone. E.g., United States v. Frazier, 213 F.3d 409, 417-18 (7th Cir.2000). The court did not plainly err by assigning a criminal history point to the sentence of conditional discharge. Section 4A1.2(c)(1)(A) provides that sentences for misdemeanor and petty offenses are counted in the criminal history' score, except that sentences for 15 identified offenses ranging from careless or reckless driving to trespassing' — and for other offenses similar to those listed — are to be counted in the criminal history computation only if “the sentence was a term of probation of at least one year oh a term of imprisonment of at least thirty days.” The parties assume that domestic battery, although not one of the crimes listed in the section 4A1.2(e)(l)(A), is an offense similar to those listed, such that his domestic battery sentence can only be counted if it required him to spend at least 30 days in jail or at least one year on probation. See generally United States v. Boyd, 146 F.3d 499, 501 (7th Cir.1998) (explaining how this circuit determines whether an offense is similar to those listed in the guideline). We have our doubts about the validity of that assumption, as Illinois conditions a conviction for domestic battery on proof that the defendant intentionally or knowingly in flicted bodily harm upon, or made physical contact of an insulting or provocative nature with, a family or household member. 720 Ill. Comp. Stat. 5/12—3.2(a); see United States v. Dillon, 905 F.2d 1034, 1039 (7th Cir.1990) (sentence for resisting arrest and battery on police officer properly counted pursuant to section 4A1.2(c)(1), as battery component of conviction was not similar to offenses listed in guideline); see also United States v. Horton, 158 F.3d 1227 (11th Cir.1998) (per curiam) (simple assault is not similar to offenses listed in guideline) (collecting cases). We may set that issue aside, however. Even assuming that domestic battery is similar to the listed offenses, Zuniga-Lazaro’s sentence would be excluded from the" }, { "docid": "15587442", "title": "", "text": "a defendant’s criminal history score. As the Introductory Commentary to the chapter explains, an assessment of criminal history is made because “[a] defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment.” The chapter begins with section 4A1.1, which gives an overview of the scoring system. Section 4A1.1, among other things, assigns between one and three points for each prior conviction based on the length of the sentence imposed. Section 4A1.2 further elaborates on the point system established by § 4A1.1. Subsection (c) of § 4A1.2 explains which prior sentences should be excluded from the criminal history score. Because the proper interpretation of this subsection is the only issue in this appeal, we quote it in its entirety: § 4A1.2(c). Sentences Counted and Excluded Sentences for all felony offenses are counted. Sentences for misdemeanor and petty offenses are counted, except as follows: (1) Sentences for the following prior offenses and offenses similar to them, by whatever name they are known, are counted only if (A) the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense: Careless or reckless driving Contempt of court Disorderly conduct or disturbing the peace Driving without a license or with a revoked or suspended license False information to a police officer Fish and game violations Gambling Hindering or failure to obey a police officer Insufficient funds check Leaving the scene of an accident Local ordinance violations (excluding local ordinance violations that are also criminal offenses under state law) Non-support Prostitution Resisting arrest Trespassing. (2) Sentences for the following prior offenses and offenses similar to them, by tuhatever name they are known, are never counted: Hitchhiking Juvenile status offenses and truancy Loitering Minor traffic infractions (e.g., speeding) Public intoxication Vagrancy. (emphasis supplied). In other words, under the remarkably opaque language of § 4A1.2(c)(l), a prior misdemeanor or petty offense should be counted in calculating a defendant’s criminal history score unless three conditions are" }, { "docid": "15587443", "title": "", "text": "(A) the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense: Careless or reckless driving Contempt of court Disorderly conduct or disturbing the peace Driving without a license or with a revoked or suspended license False information to a police officer Fish and game violations Gambling Hindering or failure to obey a police officer Insufficient funds check Leaving the scene of an accident Local ordinance violations (excluding local ordinance violations that are also criminal offenses under state law) Non-support Prostitution Resisting arrest Trespassing. (2) Sentences for the following prior offenses and offenses similar to them, by tuhatever name they are known, are never counted: Hitchhiking Juvenile status offenses and truancy Loitering Minor traffic infractions (e.g., speeding) Public intoxication Vagrancy. (emphasis supplied). In other words, under the remarkably opaque language of § 4A1.2(c)(l), a prior misdemeanor or petty offense should be counted in calculating a defendant’s criminal history score unless three conditions are met: (1) the sentence imposed was less than a term of probation of one year or a term of imprisonment of 30 days; (2) the prior offense and the instant offense are not “similar;” and (3) the prior offense is one of those listed in § 4A1.2(c)(l) (frequently referred to hereafter as “Listed Offenses”) or is “similar” to them. Subsection 4A1.2(c)(2) is by comparison a model of clarity. It directs a court never to count the offenses listed there (also frequently referred to hereafter as “Listed Offenses”), or offenses “similar” to them. In addition, the Guidelines further limit the degree to which a defendant’s criminal history score can be affected by misdemeanor or petty offense convictions. Those misdemeanor-type convictions that do not qualify for exclusion under either subsection of § 4A1.2(c) are assigned only one point each, and a defendant may re ceive no more than four criminal history points of this type. U.S.S.G. § 4Al.l(c). Although the Guidelines limit the degree to which relatively minor infractions affect criminal history, they in no way suggest" }, { "docid": "12913950", "title": "", "text": "pursuant to U.S.S.G. § 4Al.l(d), because the defendant had committed the instant federal offenses while he was still serving sentences for the second Rhode Island conviction and the 1995 Massachusetts conviction. Thus, totaling the criminal history points for a score of six, the PSR placed the defendant in Criminal History Category III. Combining this with a total offense level of 30, the applicable sentencing guideline range was 121 to 151 months’ imprisonment. The district court, accepting the PSR without objection from either party, sentenced the defendant to concurrent sentences of 121 months on Counts I, III, IV, and VI, and 60 months on the money laundering charge. The defendant filed a timely appeal, arguing that the district court erred in calculating his criminal history score and that his counsel was ineffective at the sentencing hearing. II. We review alleged sentencing errors to which a party did not contemporaneously object for plain error. See United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Torres-Rosa, 209 F.3d 4, 8 (1st Cir.2000). To establish plain error, a defendant must demonstrate that a clear or obvious error both affected his substantial rights and adversely impacted the fairness, integrity, or public reputation of judicial proceedings. See Olano, 507 U.S. at 732-36, 113 S.Ct. 1770. III. The defendant asserts that the district court erred in calculating his criminal history score in two ways: (1) the court failed to exclude the defendant’s 1995 Massachusetts conviction pursuant to U.S.S.G. § 4A1.2(a)(l); and (2) the court, contrary to U.S.S.G. § 4A1.2(a)(2), treated the first and second Rhode Island convictions as two separate offenses, rather than as one. The Sentencing Guidelines dictate that criminal history points be ascribed to a defendant for “each prior sentence” he has received. U.S.S.G. § 4A1.1. A “prior sentence” is defined as “any sentence previously imposed upon adjudication of guilt ... for conduct not part of the instant offense.” Id. § 4A1.2(a)(l). The district court, based on the PSR, attributed one point to Albanese for each of the following “prior sentences”: (1) the first Rhode Island" }, { "docid": "6833018", "title": "", "text": "property crimes, such as criminal trespass, are excluded under § 4A1.2(c). In evaluating the third and fourth Hardeman factors, level of culpability and the extent to which commission of the prior offense is more or less predictive of future crimes, the seriousness of the prior crime as reflected in the sentence must be considered. Id. at 283. The extremely light sentence noted above suggests a low level of culpability and low predictive capacity for future criminality. Id. Assessing these factors also requires analyzing the entire episode which led to the prior conviction. See United States v. Moore, 997 F.2d 30, 34 (5th Cir.1993) (defining “offense” as used in § 4A1.2(c) to “include! ] any relevant conduct and not just the conduct charged in the indictment”). When Reyes-Maya was arrested for criminal mischief he refused to give his name, date of birth, or address. Because of his refusal to cooperate with the authorities, Appellant was also charged with failure to identify and he subsequently pleaded guilty to that charge. Reyes-Maya was fined $182.50 for that offense as well. Failure to cooperate with the authorities is suggestive of both a greater degree of culpability and increased likelihood of future criminal conduct than criminal mischief standing alone. However, the decision of the Sentencing Guidelines to exclude the similar offense of false information to a police officer from criminal history scores, see U.S.S.G. § 4A1.2(c) (excluding offense where sentence is less than 1 year probation or 30 days incarceration), suggests that the added culpability and predictive nature of future criminal conduct from the failure to identify is slight. Given the similarity in punishments between Appellant’s criminal mischief conviction and disorderly conduct and that the small fine Appellant received suggests low culpability and low predictiveness of future criminal conduct, we believe that the district court erred in not excluding this conviction from Appellant’s criminal history score. This error mandates vacating Appellant’s sentence unless the error was harmless. Williams v. United States, 503 U.S. 193, 202-03, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992). Such error is harmless only if it did not affect the selection of" }, { "docid": "21518007", "title": "", "text": "was plain, and whether it affected substantial rights. United States v. Sawyer, 521 F.3d 792, 796 (7th Cir.2008). If all three conditions are met, we may exercise our discretion only if the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. When sentencing a defendant, the first step is to calculate the Guidelines range correctly, and a mistake in that calculation warrants resentencing. United States v. Hawk, 434 F.3d 959, 963 (7th Cir.2006); See United State v. Thomas, 520 F.3d 729, 736, 2008 WL 755297, at *5 (7th Cir.2008) (holding that' even though the Guidelines are advisory, a district court must accurately calculate and consult the defendant’s Guidelines range). A sentence based on an incorrect Guideline range Constitutes an error affecting substantial rights and can thus constitute plain error, which requires us to remand unless we have reason to believe that the error did not affect the district court’s selection of a particular sentence. United States v. Wallace, 32 F.3d 1171, 1174 (7th Cir.1994). The Sentencing Guidelines factor a defendant’s prior criminal history into his sentence in an effort to penalize recidivist behavior, protect the public, and deter individuals from criminal behavior. 18 U.S.C. § 3553(a); United States v. Lock, 466 F.3d 594, 599 (7th Cir.2006). Section 4A1.1 of the Guidelines sets forth point totals for a defendant’s prior sentences, and the sum of those points determines a defendant’s criminal history category. A district court counts all felonies as prior sentences, U.S.S.G. § 4A1.2(c), and misdemeanor and petty offenses are generally counted, except as provided in §§ 4A1.2(c)(1) and 4A1.2(c)(2). As relevant here, § 4A1.2(c)(1) provides that fifteen listed offenses, including contempt of court, and “offenses similar to them, by whatever name they are known, are counted only if (A) the sentence was a term of probation of more than one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense.” U.S.S.G. § 4A1.2(c)(l). Wisconsin defines “bail jumping” according to the offense for which bail was granted: if the underlying offense was a misdemeanor," }, { "docid": "6833019", "title": "", "text": "as well. Failure to cooperate with the authorities is suggestive of both a greater degree of culpability and increased likelihood of future criminal conduct than criminal mischief standing alone. However, the decision of the Sentencing Guidelines to exclude the similar offense of false information to a police officer from criminal history scores, see U.S.S.G. § 4A1.2(c) (excluding offense where sentence is less than 1 year probation or 30 days incarceration), suggests that the added culpability and predictive nature of future criminal conduct from the failure to identify is slight. Given the similarity in punishments between Appellant’s criminal mischief conviction and disorderly conduct and that the small fine Appellant received suggests low culpability and low predictiveness of future criminal conduct, we believe that the district court erred in not excluding this conviction from Appellant’s criminal history score. This error mandates vacating Appellant’s sentence unless the error was harmless. Williams v. United States, 503 U.S. 193, 202-03, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992). Such error is harmless only if it did not affect the selection of the sentence imposed. United States v. Corley, 978 F.2d 185, 186 (5th Cir.1992). In this case the district judge sentenced Reyes-Maya to 70 months’ imprisonment, a number within both the Category IV and Category V ranges. However, nothing in the record indicates that the district court would have imposed the same sentence using the lower guideline range. Further, the district court noted that its determination on this issue “really ma[de] a difference.” Accordingly, error is not harmless and we remand for re-sentencing. IV. The district court’s judgment that the penalty enhancement for prior convictions need not be charged in the grand jury indictment is AFFIRMED. Because Appellant’s prior criminal mischief conviction should have been excluded from his criminal history score pursuant to § 4A1.2(c), the sentence is VACATED, and we REMAND for re-sentencing. . Although the District Court requested details of the prior conviction beyond offense and sentence, such details were unavailable. Because of the age of the offense, the convicting court no longer has the records. Additionally, Appellant has stated that he no longer" }, { "docid": "4997982", "title": "", "text": "a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A),” and otherwise explains its sentence in terms of 18 U.S.C. § 3553, the resulting sentence does not result from an incorrect application of the Guidelines. Id. Here, the district court considered the 46 to 57-month range with the crime of violence enhancement and the 10 to 16-month range advocated by the defense. This case would be indistinguishable from Bonilla but for an argument raised for the first time on appeal. Ruiz-Arriaga now asserts that the sentence range without the crime of violence enhancement, 10 to 16 months, suggested by his counsel during the sentencing hearing, was also incorrect. He claims that this range was based on a level that erroneously assigned him a criminal history point for an earlier Texas misdemeanor conviction for failing to identify himself as a fugitive to an officer. The elements of this conviction, he argues, were not similar to his current offense under U.S.S.G. § 4A1.2(c)(1). The correct range should have been 8 to 14 months, lowering the range by two months. Because this point of error was not argued before the district and given that this range was suggested by his counsel, we review this claim for plain error. To prove plain error, Ruiz-Arriaga must “show (1) there was error, (2) the error was plain, (3) the error affected his ‘substantial rights,’ and (4) the error seriously affected ‘the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Jones, 489 F.3d 679, 681 (5th Cir.2007) (quoting United States v. Olano, 507 U.S. 725, 732, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). To satisfy the “substantial rights” prong, “in most cases ... the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. Further, “[i]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.” Id. First, we cannot attribute “plain” error to a district court decision when defense counsel affirmatively represented to the district court a sentencing range that appellate counsel" }, { "docid": "23635104", "title": "", "text": "require the sentencing court to add one criminal history point for each prior sentence that is not otherwise counted in the guideline sections dealing with sentences of at least 60 days’ imprisonment. See U.S.S.G. § 4Al.l(c). In 1993, Binford was convicted in Sangamon County of illegal transportation of alcohol by a driver, for which he received one year of court supervision. This prior offense gave him one criminal history point. Because Binford committed the drug-trafficking offenses at issue in this case while on supervision for the prior offense, the district court added two additional points. See U.S.S.G. § 4Al.l(d). The three criminal history points together resulted in a criminal history category of II. Binford asserts that his sentence for illegal transportation of alcohol falls within the ambit of § 4A1.2(c)(l) of the guidelines, which excludes misdemeanor and petty offenses in criminal history calculations under certain conditions. Section 4A1.2(c)(l) provides: (c) Sentences Counted and Excluded Sentences for all felony offenses are counted. Sentences for misdemeanor and petty offenses are counted, except as follows: (1) Sentences for the following prior offenses and offenses similar to them, by whatever name they are known-, are counted only if (A) the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense: Careless or reckless driving Contempt of court Disorderly conduct or disturbing the peace Driving without a license or with a revoked or suspended license False information to a police officer Fish or game violations Gambling Hindering or failure to obey a police officer Insufficient funds check Leaving the scene of an accident Local ordinance violations (excluding local ordinance violations that are also criminal offenses under state law) Non-support Prostitution Resisting Arrest Trespassing Under the relevant provisions of this section, Binford’s prior sentence is excludable if the offense of illegal transportation of alcohol is “similar to” any of the listed offenses, and then only if Binford’s sentence for that conviction was not equivalent to at least one year of probation. The district court" } ]

[ { "docid": "19654662", "title": "", "text": "and policy statements set forth in U.S.S.G. § 7B1.4, although not binding, are entitled to great weight. United States v. Carter, 408 F.3d 852, 854 (7th Cir.2005); United States v. Salinas, 365 F.3d 582, 588 (7th Cir.2004). Accordingly, the district court must consider the factors set forth in § 7B1.4 in choosing a term of reimpris-onment, but the recommended imprisonment range “informs rather than cabins” the court’s sentencing discretion. Salinas, 365 F.3d at 588. On review, our inquiry focuses not “on the detail with which the district court expressed its reasons for imposing” a specific period of confinement, United States v. Marvin, 135 F.3d 1129, 1140 (7th Cir.1998), but on whether the district court’s statements on the record reflect that it considered the appropriate factors in exercising its discretion, see Salinas, 365 F.3d at 588-89. The record reveals that the district court considered the factors set forth in § 7B1.4 before imposing the 18-month term of reimprisonment. Although the district court did not discuss § 7B1.4 on the record before rendering judgment, the court told Ms. Pitre before it continued the revocation hearing that “if she can stay off [drugs] for 30 days then we will maybe give her another 60 days or so,” R.114-1 at 11. The court therefore indicated that it had considered a period of confinement at or below the recommended range of three to nine months. See U.S.S.G. § 7B1.4(a); see also Marvin, 135 F.3d at 1139 (explaining that district court may impose term of reimprisonment anywhere from one day to statutory maximum). The court’s remarks, however, also indicate that it had considered the possibility that Ms. Pitre would be unable to refrain from drug use and consequently would warrant a longer period of confinement. See Carter, 408 F.3d at 854 (holding that the district court must consider factors under § 7B1.4 as well as 18 U.S.C. § 3553(a) in fashioning penalty for violations of supervised release); see also 18 U.S.C. § 3553(a)(1) (listing defendant’s history and characteristics as sentencing factors). Although not expressly adopted by the court, the Government had explained at the August 31," } ]

[ { "docid": "82597", "title": "", "text": "already had a conviction for a drug offense, see 21 U.S.C. § 844(a); United States v. Trotter, 270 F.3d 1150, 1154 (7th Cir.2001).) But the district court did not say specifically that the reimpris-onment range was subject to a statutory maximum of 24 months given that the underlying § 922(g)(1) offense was a class C felony. See 18 U.S.C. §§ 924(a)(2), 3559(a)(3), 3583(e)(3); U.S.S.G. §§ 7B1.1, 7B1.4(a), (b)(3)(A). Counsel thus questions whether Wheeler could argue that the district court was misinformed about the true range when deciding on the appropriate term of reimprisonment. But as appellate counsel points out, the prosecutor noted that 24 months was the statutory maximum in recommending a term of that length. The probation officer also had alerted the district court in writing that 24 months was the maximum. The court said nothing suggesting a misunderstanding about the statutory maximum, and the court even referred to 18 U.S.C. § 3583, which defined that maximum, . when announcing the 21-month term. Thus, on this record Wheeler could not make a meritorious claim that the district court was misinformed about its options. See Pitre, 504 F.3d at 663-64 (district court did not err when it did not explicitly state reimprisonment range during revocation hearing). Counsel also considers but rightly rejects an argument that the new term of supervised release is unlawful or plainly unreasonable. The 12-month term is less than the statutory maximum of 15 months (based on the 36 months of supervised release authorized for Wheeler’s underlying conviction, less the 21 months of reim-prisonment ordered on revocation). See 18 U.S.C. § 3583(b)(2) & (h). The term imposed also is within the policy-statement range of up to 15 months. See U.S.S.G. § 7B 1.3(g)(2). The district court explained that a new term of supervised release was justified based on factors in § 3553(a), including Wheeler’s violations during the initial period of supervised release, his significant substance-abuse issues, and the need for supervision to assist with his reintegration into society. The court also fully explained the need for a special condition authorizing treatment for drug and alcohol abuse, given" }, { "docid": "16307268", "title": "", "text": "B violation — was 8 to 14 months. See U.S.S.G. § 7B1.4(a). The district court’s order that Brown serve the term of federal reimprisonment after his new state sentence is also consistent with the relevant policy statement. See U.S.S.G. § 7B1.3(f). Counsel also considers but rightly rejects a challenge to the reasonableness of the term of reimprisonment. As required by 18 U.S.C. § 3583(e), the court took into account the pertinent sentencing factors in § 3553(a), including the nature and circumstances of the violation (opining that failing to register as a sex offender is a “very serious crime”), Brown’s history and characteristics (noting his multiple convictions for sex offenses involving children and his frequent parole violations), and the need to encourage Brown to comply with the court’s orders. We would not find the new term of reimprisonment to be •plainly unreasonable. See United States v. Jones, 774 F.3d 399, 404-05 (7th Cir.2014); United States v. Neal, 512 F.3d 427, 438 (7th Cir.2008). Finally, counsel considers but dismisses as frivolous a potential argument that the new term of supervised release is unlawful or plainly unreasonable. The statute for the underlying conviction authorized a lifetime term of supervision, so the 10-year term of supervised release the judge imposed on revocation was within the permissible range. See 18 U.S.C. § 3583(k); U.S.S.G. § 7B1.3(g)(2). And, in light of the district court’s discussion of Brown’s history and characteristics, we would not find the new term of supervised release plainly unreasonable. Counsel does not mention two standard conditions of supervised release that the district court imposed and that we have criticized as vague. First, we have said that language requiring Brown to notify his probation officer of any change in employment leaves unclear whether this condition applies only to “ ‘changing employers or also includes changing from one position to another for the same employer at the same workplace.’” See United States v. Hill, No. 15-3090, 818 F.3d 342, 345 (7th Cir. Apr. 7, 2016), quoting United States v. Thompson, 777 F.3d 368, 379 (7th Cir.2015). Second, the condition prohibiting Brown from leaving the judicial" }, { "docid": "8239073", "title": "", "text": "failing to use Exhibit 4-B to cross-examine McCurdy. We decline to address the issue. As the Supreme Court has stated, “[I]n most cases a motion brought under [28 U.S.C.] § 2255 is preferable to direct appeal for deciding claims of ineffective assistance.” Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). Even before Massaro this circuit had held that it is never necessary to bring an ineffectiveness claim on direct appeal because collateral proceedings under 28 U.S.C. § 2255 are almost always preferable. We explained: “A factual record must be developed in and addressed by the district court in the first instance for effective review. Even if evidence is not necessary, at the very least counsel accused of deficient performance can explain their reasoning and actions, and the district court can render its opinion on the merits of the claim.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.1995) (en banc) (footnote omitted). We see no reason here to depart from the general rule that ineffective-assistance claims should not be addressed on direct appeal. III. CONCLUSION We AFFIRM the district court. . A second letter from another commissioner mentions Ashdown and the audit but says nothing about Ashdown’s knowledge of it; nor does it suggest what the audit results were. . Mr. Mitchell's reply brief on appeal points to two affidavits asserting that Exhibit 4-B was not made available to Defendants before trial. One is by Mr. Mitchell's sister, who kept records at Mitchell Construction. The other was by a paralegal for Ms. Erickson's posttrial and appellate counsel. It is questionable whether the affiants could have had personal knowledge of what was made available to Defendants in the government’s open file; but we do not consider their affidavits in any event, because they were not referenced in Mr. Mitchell's opening brief, so the government had no opportunity to challenge them. See Stump v. Gates, 211 F.3d 527, 533 (10th Cir.2000) (court does not ordinarily consider matters raised for first time in reply brief)." }, { "docid": "22469744", "title": "", "text": "Mr. Neal has presented no support for his claim that he is entitled to exculpatory material. Consequently, we need not reach the substantive issue whether, and under what circumstances, an individual subject to revocation proceedings is entitled to exculpatory material. B. Sentence Mr. Neal also maintains that the sentence imposed by the district court was too severe. We recently confirmed that “a sentence imposed after the revocation of supervised release can be set aside only if it is ‘plainly unreasonable.’ ” United States v. Kizeart, 505 F.3d 672, 673 (7th Cir.2007). To reach a reasonable sentence, the district court must begin its analysis with the recommended imprisonment ranges found in U.S.S.G. § 7B1.4, but these ranges “inform[] rather than cabin[ ]” the district court’s sentencing discretion. United States v. Pitre, 504 F.3d 657, 664 (7th Cir.2007) (internal quotation marks and citations omitted). The court also must consider the sentencing factors enumerated in 18 U.S.C. § 3553(a). See United States v. Carter, 408 F.3d 852, 854 (7th Cir.2005). As with an initial sentencing decision, the court “need not make factual findings on the record for each factor”; however, “the record should reveal that the court gave consideration to those factors.” Id. In the present case, the district court employed the correct methodology in reaching Mr. Neal’s sentence. First, the court noted the suggested guidelines ranges for Mr. Neal’s violations. The two violations admitted by Mr. Neal, the requirement that Mr. Neal provide accurate financial reports and the prohibition on opening new lines of credit, are “Grade C” violations, see U.S.S.G. § 7B1.1(a)(3), and carry a recommended sentencing range of 3 to 9 months, see id. § 7B1.4. Additionally, the district court found that Mr. Neal had violated three other terms of his supervised release: committing another federal, state or local crime; being involved in video gambling; and being employed in an unlawful occupation. These additional violations are “Grade B” violations, see U.S.S.G. § 7Bl.l(a)(2), and carry a recommended sentence of 4 to 10 months, see id. § 7B1.4. The district court, however, then turned to the factors set forth in 18" }, { "docid": "16307267", "title": "", "text": "thorough, so we focus our review on the subjects that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir.2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996). Counsel first questions whether Brown could challenge the calculation of his reimprisonment range. Brown did not object to the district court’s application of the policy statements in Chapter 7 of the U.S. Sentencing Guidelines, so our review would be limited to plain error. See Wheeler, 814 F.3d at 857; United States v. Pitre, 504 F.3d 657, 661, 664 (7th Cir.2007). The new offense that Brown admitted committing — failing to register a change of address as a sex offender — was punishable by a term of imprisonment greater than one year, see 730 ILCS 150/3(a), 10(a); id. 5/5-4.5-40(a), and thus was a Grade B violation of his federal supervised release. See U.S.S.G. § 7Bl.l(a)(2). The court correctly determined that the recommended range of reimprisonment — based on the Category III criminal history at the time of Brown’s original sentencing and his Grade B violation — was 8 to 14 months. See U.S.S.G. § 7B1.4(a). The district court’s order that Brown serve the term of federal reimprisonment after his new state sentence is also consistent with the relevant policy statement. See U.S.S.G. § 7B1.3(f). Counsel also considers but rightly rejects a challenge to the reasonableness of the term of reimprisonment. As required by 18 U.S.C. § 3583(e), the court took into account the pertinent sentencing factors in § 3553(a), including the nature and circumstances of the violation (opining that failing to register as a sex offender is a “very serious crime”), Brown’s history and characteristics (noting his multiple convictions for sex offenses involving children and his frequent parole violations), and the need to encourage Brown to comply with the court’s orders. We would not find the new term of reimprisonment to be •plainly unreasonable. See United States v. Jones, 774 F.3d 399, 404-05 (7th Cir.2014); United States v. Neal, 512 F.3d 427, 438 (7th Cir.2008). Finally, counsel considers but dismisses as frivolous a potential argument that the new" }, { "docid": "22394828", "title": "", "text": "As a general rule, we will not entertain ineffective assistance claims on direct appeal, see Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) (cautioning that such challenges are better raised under 28 U.S.C. § 2255), unless \"the factual record is fully developed and resolution of the Sixth Amendment claim ... is beyond any doubt,” United States v. Gaskin, 364 F.3d 438, 468 (2d Cir.2004) (internal quotation marks omitted). This is such a case. A defendant raising an ineffective assistance claim must satisfy both parts of the test articulated in Strickland v. Washington, i.e., he must demonstrate (1) that counsel's representation \"fell below an objective standard of reasonableness,” and (2) that \"but for counsel's unprofessional errors,the result of the proceeding would have been different.” 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is \"no doubt” that Valentin cannot satisfy the prejudice prong of this test because the record plainly supports the district court’s findings of fact relevant to the calculation of defendants' Guidelines ranges. Accordingly, as discussed infra, we reject defendants’ preponderance challenges as without merit, whether presented directly or as an ineffective assistance claim. . The Honorable Robert J. Ward, who for more than thirty years served with distinction on the United States District Court for the Southern District of New York, died on August 5, 2003. . Judicial authority to find facts relevant to sentencing by a preponderance of the evidence survives Booker. As we explained in Crosby, after Booker, district courts are still statutorily obliged to \"consider” the Guidelines, 397 F.3d at 111 (quoting 18 U.S.C. § 3553(a)(4)), which necessarily means they must determine the Guidelines range applicable to a particular defendant, id. This task is to be performed \"in the same manner as before Booker]],\" id. at 112, because \"with the mandatory use of the Guidelines excised, the traditional authority of a sentencing judge to find all facts relevant to sentencing will encounter no Sixth Amendment objection. Thus, the sentencing judge will be entitled to find all of the facts that the Guidelines make relevant" }, { "docid": "6581663", "title": "", "text": "drinking.” The court thus recognized the issue in Begay but concluded that the Supreme Court’s decision would not change its view of the appropriate prison term for Jackson. The court reiterated its position when it later explained that, given all of the sentencing factors, “I do think that the Guidelines have it about right with the 27 to 33 months.” The district court adequately explained that based on the Sentencing Commission’s policy statements and the factors under 18 U.S.C. § 3553(a), it would have imposed the same 27-month term of imprisonment after revocation of supervised release regardless of whether a DWI was classified a “crime of violence.” See Neal, 512 F.3d at 438; United States v. Pitre, 504 F.3d 657, 664 (7th Cir.2007). The sentence that the court imposed after the revocation of Jackson’s supervised release was not plainly unreasonable. We AffiRm both the judgment and sentence imposed. . After Jackson filed his brief on appeal, the Supreme Court issued its opinion in Begay v. United States, - U.S. -, 128 S.Ct. 1581, 1583, 170 L.Ed.2d 490 (2008), holding that a DWI is not a violent felony. Recently we followed this holding and determined that a DWI is not a crime of violence. See United States v. Templeton, 543 F.3d 378, 380 (7th Cir.2008). . The Sentencing Commission has established a Revocation Table of recommended sentencing ranges for imprisonment after violation of supervised release. See U.S.S.G. § 7B 1.4(a). These ranges, however, are advisory, thus the sentencing court \"has discretion to impose the sentence that it feels appropriate within the statutory limits,'' even if it falls outside of the advisory range. United States v. Carter, 408 F.3d 852, 854 (7th Cir.2005); see United States v. Kizeart, 505 F.3d 672, 673 (7th Cir.2007)." }, { "docid": "12870257", "title": "", "text": "constitutionally ineffective. In fact, if he had advised Vinyard to pursue a direct appeal of his plea, that advice would have raised a serious constitutional concern in its own right. To raise a claim on direct appeal in spite of an inadequate record would have been fruitless but also might well have resulted in procedural default because issues “raised on direct appeal may not be reconsidered on a § 2255 motion absent changed circumstances.” Varela v. United States, 481 F.3d 932, 935 (7th Cir.2007). To illustrate this danger, consider the context of the most common sorts of claims for ineffective assistance of counsel. Like Vinyard’s challenge to his plea, such claims generally depend on information outside the record available on direct appeal. The Supreme Court has definitively held that ineffective-assistance claims need not be presented on direct appeal to preserve them for collateral attack under § 2255, Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003), because ineffective-assistance claims nearly always require more extensive and targeted factual development than is available in the record on direct appeal. Furthermore, once “an ineffective-assistance claim is rejected on direct appeal, it cannot be raised again on collateral review.” United States v. Flores, 739 F.3d 337, 341 (7th Cir.2014). “A litigant gets to argue ineffective assistance, and for that matter any other contention, just once.” Id. Thus, bringing a premature claim for ineffective assistance of counsel on direct appeal is not prudent, and we have repeatedly cautioned defendants against raising such claims on direct appeal. E.g., United States v. Bryant, 754 F.3d 443, 444 (7th Cir.2014) (ineffective-assistance claims “usually as a matter of prudence should not” be raised on direct appeal); Flores, 739 F.3d at 341 (“Raising ineffective assistance on direct appeal is imprudent because defendant paints himself into a corner.”); United States v. Harris, 394 F.3d 543, 558 (7th Cir.2005). These principles and the blanket exception in Massaro apply specifically to inef-feetive-assistance-of-counsel claims, but their logic applies equally to the claims Yinyard says he would have brought on direct appeal. Issues “raised on direct appeal may not" }, { "docid": "19654651", "title": "", "text": "don’t know if that will do any good or not, but you know, I am not going to hear any arguments one way or the other, you are going for the 18 months if you miss a drop or if you have a dirty drop, okay? DEFENDANT: Okay. R.114-1 at 11. When the hearing reconvened on October 3, 2006, the Government reported that Ms. Pitre had tested positive twice since the continuance. Ms. Pitre, through counsel, conceded the Government’s account, but requested that the court recommend that her sentence be served as close to Chicago as possible. Counsel advanced no arguments against her reimprisonment, in- eluding the length of reimprisonment. Without affording Ms. Pitre an opportunity to address personally the court, the district court then revoked Ms. Pitre’s supervised release and imposed the term of reimprisonment recommended by the Government. Neither Ms. Pitre nor her counsel objected to the lack of opportunity for Ms. Pitre to alloeute. II DISCUSSION Ms. Pitre now appeals her sentence of reimprisonment on two grounds. First, she contends that the district court must reconsider the terms of reimprisonment and supervised release because they were imposed without inviting her to alloeute. Second, she submits that the district court abused its discretion when it imposed an 18-month term of reimprisonment because the court failed to consider the imprisonment range or policy statements set forth in U.S.S.G. § 7B1.4 before imposing sentence. A. Ms. Pitre concedes that she forfeited her challenge based on the denial of her right to alloeute. Therefore, our review is limited to plain error. United States v. Luepke, 495 F.3d 443, 2007 WL 2091227 (7th Cir.2007); United States v. Reyna, 358 F.3d 344, 348-50 (5th Cir.2004) (en banc). Plain error review requires us to determine whether: (1) error occurred; (2) the error was plain; and (3) the error affected the defendant’s substantial rights. United States v. Simpson, 479 F.3d 492, 496 (7th Cir.2007). If these criteria are met, we may reverse, in an exercise of discretion, if we determine that the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id.;" }, { "docid": "82595", "title": "", "text": "challenges the appropriateness of revocation nor asserts substantial and complex grounds in mitigation. See Gagnon v. Scarpelli, 411 U.S. 778, 790-91, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); United States v. Boultinghouse, 784 F.3d 1163, 1171-72 (7th Cir.2015); United States v. Eskridge, 445 F.3d 930, 932-33 (7th Cir.2006). Thus the Anders safeguards do not govern our review of counsel’s motion to withdraw. See Pennsylvania v. Finley, 481 U.S. 551, 554-55, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); Eskridge, 445 F.3d at 933. We may affirm “if we determine that the appeal, though not frivolous, is also not meritorious.” Eskridge, 445 F.3d at 933. We invited Wheeler to comment on counsel’s motion, but he has not responded. See Cir. R. 51(b). Counsel has submitted a brief that explains the nature of the ease and addresses the potential issues that an appeal of this kind might be expected to involve. The analysis in the brief appears to be thorough, so we focus our review on the subjects that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir.2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996). Counsel first notes that Wheeler does not want to challenge the revocation of his supervision, and thus the lawyer properly refrains from discussing whether Wheeler’s admissions to the charged violations were knowing and voluntary. See United States v. Wheaton, 610 F.3d 389, 390 (7th Cir.2010); United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). Counsel next discusses ■ whether Wheeler could raise an appellate claim about the calculation of his reimpris-onment range. Wheeler did not object to the district court’s application of the Sentencing Guideline Chapter 7 policy statements, so our review would be limited to plain error. See United States v. Pitre, 504 F.3d 657, 661, 664 (7th Cir.2007); United States v. Harvey, 232 F.3d 585, 587 (7th Cir.2000). At Wheeler’s revocation hearing the district court said that his reimprisonment range would be 21 to 27 months. (Wheeler’s criminal history category is VI, and the court found that his possession of marijuana constituted a Grade B violation because he" }, { "docid": "23441990", "title": "", "text": "80 L.Ed.2d 674 (1984). The Supreme Court has established that for a criminal defendant in federal custody a motion under 28 U.S.C. § 2255 is generally the preferred mode for raising a claim of ineffective assistance of counsel. See Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) (“[I]n most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance.”). This is due to the fact that “[w]hen an ineffective-assistance claim is brought on direct appeal, appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose.” Id. at 504-05, 123 S.Ct. 1690. Bringing an ineffective assistance of counsel claim by way of a § 2255 motion allows the claim to be litigated in the first instance in the district court, which is “the forum best suited to developing the facts necessary to determining the adequacy of representation” because it may take testimony from witnesses including the defendant, prosecution, and counsel. Id. at 505-06, 123 S.Ct. 1690. In recognition of the fact that on direct appeal the record generally “has not been sufficiently developed for assessing the merits of the allegation” of ineffective assistance, United States v. Goodlett, 3 F.3d 976, 980 (6th Cir.1993), we have adopted a “ ‘general rule [that] a defendant may not raise ineffective assistance of counsel claims for the first time on direct appeal....’” United States v. Martinez, 430 F.3d 317, 338 (6th Cir.2005) (quoting United States v. Wunder, 919 F.2d 34, 37 (6th Cir.1990)); see also United States v. Franco, 484 F.3d 347, 355 (6th Cir.2007) (explaining that we generally do not review “ineffective assistance of counsel claims on direct appeal because ... appellate courts are not equipped to resolve factual issues”) (internal quotation marks omitted). However, we may choose to hear the issue on direct appeal if we find that the parties have adequately developed the record. United States v. Pierce, 62 F.3d 818, 833 (6th Cir.1995); Wunder," }, { "docid": "22469743", "title": "", "text": "the petition not only sought evidence, but “fourteen days to review and evaluate the evidence.” R.34 at 3. Except for counsel’s allegations in the discovery motion, Mr. Neal made no effort to establish that there was exculpatory evidence to be gained. In short, Mr. Neal’s discovery motion suffers from the same inadequacies in timeliness and proof as that rejected by the Eighth Circuit in Quiroz. In denying Mr. Neal’s request for discovery, the district court made clear that it considered Mr. Neal’s request untimely and an effort to delay further his revocation hearing. R.36 at 4 (“He is submitting the current wide-ranging discovery request in the matter before the court very late in the process, after several continuances and after the evidence was closed.”). The holding of Quiroz reflects a concern that requests for exculpatory evidence may be used as a means of manipulating the judicial process. In Quiroz, the court explicitly rejected a belated attempt by counsel to obtain evidence similar to that sought by Mr. Neal. Given the procedural inadequacies of his request, Mr. Neal has presented no support for his claim that he is entitled to exculpatory material. Consequently, we need not reach the substantive issue whether, and under what circumstances, an individual subject to revocation proceedings is entitled to exculpatory material. B. Sentence Mr. Neal also maintains that the sentence imposed by the district court was too severe. We recently confirmed that “a sentence imposed after the revocation of supervised release can be set aside only if it is ‘plainly unreasonable.’ ” United States v. Kizeart, 505 F.3d 672, 673 (7th Cir.2007). To reach a reasonable sentence, the district court must begin its analysis with the recommended imprisonment ranges found in U.S.S.G. § 7B1.4, but these ranges “inform[] rather than cabin[ ]” the district court’s sentencing discretion. United States v. Pitre, 504 F.3d 657, 664 (7th Cir.2007) (internal quotation marks and citations omitted). The court also must consider the sentencing factors enumerated in 18 U.S.C. § 3553(a). See United States v. Carter, 408 F.3d 852, 854 (7th Cir.2005). As with an initial sentencing decision, the court" }, { "docid": "10087653", "title": "", "text": "tried to do what we could to help you with that weakness, and we haven’t been very successful.” The court then revoked Coleman’s supervised release and sentenced him to thirty months of imprisonment — three months above the upper end of the applicable Guidelines range — with no further supervised release. The court concluded by asking Coleman, his counsel, and the prosecutor if they had any objections to the imposed sentence. Each responded in the negative. Coleman timely filed a notice of appeal. On appeal, Coleman argues that he was constructively denied the assistance of counsel during his revocation hearing. He also argues that the district court’s sentence was procedurally unreasonable because the district court failed to consider relevant sentencing factors and did not provide reasons for imposing an above-Guidelines sentence. We address each of Coleman’s arguments in turn. II We begin with Coleman’s claim that he was constructively denied the assistance of counsel at his revocation hear ing on the ground that Abell had insufficient time in which to prepare a defense. Claims of ineffective assistance of counsel present mixed questions of law and fact that we review de novo. United States v. Ferguson, 669 F.3d 756, 761 (6th Cir. 2012). However, we generally review such claims on collateral review because the record on direct appeal “is [often] insufficient to assess the merits of the claim.” United States v. Smith, 600 Fed.Appx. 991, 993 (6th Cir. 2015); see also Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). Only in the rare case that would not benefit from further record development do we consider such claims on direct review. See United States v. Franklin, 415 F.3d 537, 555-56 (6th Cir. 2005). As a general rule, claims of ineffective assistance of counsel are governed by the familiar two-part framework set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a criminal defendant is not entitled to relief unless he proves both that counsel’s performance was deficient, measured by reference to “an objective standard of reasonableness,” id." }, { "docid": "23072187", "title": "", "text": "departure on this ground constitutes plain error. This court generally does “not review a district court’s decision not to depart downward unless the record shows that the district court was unaware of, or did not understand, its discretion to make such a departure.” United States v. Santillana, 540 F.3d 428, 431 (6th Cir.), cert. denied, — U.S.-, 129 S.Ct. 469, 172 L.Ed.2d 337 (2008); see also United States v. Puckett, 422 F.3d 340, 344 (6th Cir. 2005), cert. denied, 547 U.S. 1122, 126 S.Ct. 1935, 164 L.Ed.2d 683 (2006). At Johnson’s sentencing hearing, the district judge expressly declined to grant a departure, saying: The Court has reviewed [] whether a guideline departure or a variance under Section 3553 factors is warranted in this case. The Court finds that no such departure or variance is warranted in this case because the circumstances here, in the Court’s judgment, are not so exceptional as to form the factual basis for any such departure or variance. J.A. at 120 (Sent. Tr. at 22). The district judge was thus clearly aware of his discretion to depart from the Guidelines range, but declined to do so. Because the district court recognized its discretion, we decline to review the district court’s failure to grant a downward departure under U.S.S.G. § 4A1.3(b)(1). E. Ineffective Assistance of Counsel Johnson also argues that he received ineffective assistance of counsel because his attorney at sentencing failed to move for a downward departure pursuant to U.S.S.G. § 5K2.0, based on Johnson’s exceptional cooperation and acceptance of responsibility. An ineffective-assistance-of-counsel claim is generally not considered on direct appeal because the record of trial counsel’s deficient performance is not fully developed. United States v. DeJohn, 368 F.3d 533, 548 (6th Cir.), cert. denied, 543 U.S. 988, 125 S.Ct. 510, 160 L.Ed.2d 373 (2004); see also Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) (“In light of the way our system has developed, in most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance.”). Here, we conclude that the" }, { "docid": "4161574", "title": "", "text": "court, Isom’s appellate lawyer argued that trial counsel had no strategic reason for remaining silent on the Kimbrough issue, and thus was deficient in not raising the claim. We likewise are hard-pressed to discern any strategic justification for trial counsel’s silence. When the district judge asked counsel whether he had anything further on the drug-quantity issue, counsel stressed that in his 30 years’ experience he learned it was best to keep his “mouth shut.” We will not justify as “strategic” a decision to stay silent if we cannot discern any way in which silence would have improved the client’s position. See Girts v. Yanai, 501 F.3d 743, 757-58 (6th Cir.2007); Miller v. Martin, 481 F.3d 468, 473 (7th Cir.2007). Before oral argument, however, Isom’s appellate counsel notified this court that he was withdrawing the ineffective-assistance argument “with no waiver to the argument being asserted in a subsequent proceeding under 28 U.S.C. § 2255,” Counsel confirmed that statement at oral argument. This was a wise move since ineffective-assistance claims typically require a more developed record than exists on direct appeal. See Massaro v. United States, 538 U.S. 500, 505, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Schuh, 289 F.3d 968, 976 (7th Cir.2002). And on the off chance that Isom might have a valid postconviction claim that trial counsel was ineffective for failing to raise a Kimbrough argument, it would be premature for us to discuss that question. At oral argument we also asked appellate counsel if he wished us to address the forfeited Kimbrough claim as a matter of plain error in lieu of his ineffective-assistance claim, which we have power to do, see United States v. Olano, 507 U.S. 725, 733-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Silber v. United States, 370 U.S. 717, 717-18, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962). But counsel declined our invitation. Conclusion Because the district court’s relevant-conduct determination rested on reliable evidence, we Affirm. . \"Eight-ball” is a street term for one-eighth of an ounce. See United States v. Plummer, 581 F.3d 484, 486 (7th Cir.2009), cert. denied, -" }, { "docid": "16307266", "title": "", "text": "There is no constitutional right to counsel in a revocation proceeding when, as here, the defendant admits violating the conditions of his supervision and neither challenges the appropriateness of revocation nor asserts substantial and complex grounds in mitigation. See Gagnon v. Scarpelli, 41Í U.S. 778, 790-91, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); United States v. Boultinghouse, 784 F.3d 1163, 1171 (7th Cir.2015); United States v. Eskridge, 445 F.3d 930, 932-33 (7th Cir.2006). The An-ders safeguards thus do not govern our review of counsel’s motion to withdraw, see Pennsylvania v. Finley, 481 U.S. 551, 554-55, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); United States v. Wheeler, 814 F.3d 856, 857 (7th Cir.2016), though we follow them to ensure consideration of potential issues. We invited Brown to comment on counsel’s motion, but he has not responded. See Cir. R. 51(b). Counsel has submitted a brief that' explains the nature of the case and addresses the potential issues that an appeal of this kind might be expected to involve. The analysis in the brief appears to be thorough, so we focus our review on the subjects that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir.2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996). Counsel first questions whether Brown could challenge the calculation of his reimprisonment range. Brown did not object to the district court’s application of the policy statements in Chapter 7 of the U.S. Sentencing Guidelines, so our review would be limited to plain error. See Wheeler, 814 F.3d at 857; United States v. Pitre, 504 F.3d 657, 661, 664 (7th Cir.2007). The new offense that Brown admitted committing — failing to register a change of address as a sex offender — was punishable by a term of imprisonment greater than one year, see 730 ILCS 150/3(a), 10(a); id. 5/5-4.5-40(a), and thus was a Grade B violation of his federal supervised release. See U.S.S.G. § 7Bl.l(a)(2). The court correctly determined that the recommended range of reimprisonment — based on the Category III criminal history at the time of Brown’s original sentencing and his Grade" }, { "docid": "19654663", "title": "", "text": "Ms. Pitre before it continued the revocation hearing that “if she can stay off [drugs] for 30 days then we will maybe give her another 60 days or so,” R.114-1 at 11. The court therefore indicated that it had considered a period of confinement at or below the recommended range of three to nine months. See U.S.S.G. § 7B1.4(a); see also Marvin, 135 F.3d at 1139 (explaining that district court may impose term of reimprisonment anywhere from one day to statutory maximum). The court’s remarks, however, also indicate that it had considered the possibility that Ms. Pitre would be unable to refrain from drug use and consequently would warrant a longer period of confinement. See Carter, 408 F.3d at 854 (holding that the district court must consider factors under § 7B1.4 as well as 18 U.S.C. § 3553(a) in fashioning penalty for violations of supervised release); see also 18 U.S.C. § 3553(a)(1) (listing defendant’s history and characteristics as sentencing factors). Although not expressly adopted by the court, the Government had explained at the August 31, 2006 hearing that an extended period of confinement was necessary to ensure that Ms. Pitre could complete the Bureau of Prisons’ custodial drug-treatment program. See id. § 3553(a)(2)(D) (listing need for medical care as sentencing factor). The court’s failure formally to adopt the Government’s reasoning is not plain error or, for that matter, any error at all. See Salinas, 365 F.3d at 589 (explaining that the district court need not make findings as to each resentencing factor so long as the record reveals that the court considered the appropriate factors); see also United States v. Olivas-Ramirez, 487 F.3d 512, 517 (7th Cir.2007) (explaining that district court need not make findings as to each sentencing factor so long as the record reveals that the court engaged in “meaningful consideration” of the factors). Ms. Pitre certainly has not shown that the sentence imposed was plainly unreasonable. Here, the reason for the 18-month sentence was to ensure that Ms. Pitre would be able to complete the Bureau of Prisons’ drug treatment program. This reasoning corresponds precisely to the" }, { "docid": "82598", "title": "", "text": "that the district court was misinformed about its options. See Pitre, 504 F.3d at 663-64 (district court did not err when it did not explicitly state reimprisonment range during revocation hearing). Counsel also considers but rightly rejects an argument that the new term of supervised release is unlawful or plainly unreasonable. The 12-month term is less than the statutory maximum of 15 months (based on the 36 months of supervised release authorized for Wheeler’s underlying conviction, less the 21 months of reim-prisonment ordered on revocation). See 18 U.S.C. § 3583(b)(2) & (h). The term imposed also is within the policy-statement range of up to 15 months. See U.S.S.G. § 7B 1.3(g)(2). The district court explained that a new term of supervised release was justified based on factors in § 3553(a), including Wheeler’s violations during the initial period of supervised release, his significant substance-abuse issues, and the need for supervision to assist with his reintegration into society. The court also fully explained the need for a special condition authorizing treatment for drug and alcohol abuse, given Wheeler’s lengthy history of using alcohol, cocaine, and marijuana. We would not find the new term of supervised release to be plainly unreasonable. See United States v. Jones, 774 F.3d 399, 404-05 (7th Cir.2014); United States v. Neal, 512 F.3d 427, 438 (7th Cir.2008). Counsel does not mention two standard conditions of supervised release that we have criticized as vague. First, we have said that language requiring Wheeler to notify his probation officer of any “change ... in employment” leaves unclear whether this condition applies only to “changing employers or also includes changing from one position to another for the same employer at the same workplace.” United States v. Thompson, 777 F.3d 368, 379 (7th Cir.2015). Second, the condition prohibiting Wheeler from leaving the judicial district without permission “improperly imposes strict liability” because it lacks a scienter requirement. United States v. Kappes, 782 F.3d 828, 849-50 (7th Cir.2015). That being said, we have no reason to believe that Wheeler wishes to challenge these conditions, as counsel has not identified them as potential issues and Wheeler" }, { "docid": "82596", "title": "", "text": "774, 776 (7th Cir.2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996). Counsel first notes that Wheeler does not want to challenge the revocation of his supervision, and thus the lawyer properly refrains from discussing whether Wheeler’s admissions to the charged violations were knowing and voluntary. See United States v. Wheaton, 610 F.3d 389, 390 (7th Cir.2010); United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). Counsel next discusses ■ whether Wheeler could raise an appellate claim about the calculation of his reimpris-onment range. Wheeler did not object to the district court’s application of the Sentencing Guideline Chapter 7 policy statements, so our review would be limited to plain error. See United States v. Pitre, 504 F.3d 657, 661, 664 (7th Cir.2007); United States v. Harvey, 232 F.3d 585, 587 (7th Cir.2000). At Wheeler’s revocation hearing the district court said that his reimprisonment range would be 21 to 27 months. (Wheeler’s criminal history category is VI, and the court found that his possession of marijuana constituted a Grade B violation because he already had a conviction for a drug offense, see 21 U.S.C. § 844(a); United States v. Trotter, 270 F.3d 1150, 1154 (7th Cir.2001).) But the district court did not say specifically that the reimpris-onment range was subject to a statutory maximum of 24 months given that the underlying § 922(g)(1) offense was a class C felony. See 18 U.S.C. §§ 924(a)(2), 3559(a)(3), 3583(e)(3); U.S.S.G. §§ 7B1.1, 7B1.4(a), (b)(3)(A). Counsel thus questions whether Wheeler could argue that the district court was misinformed about the true range when deciding on the appropriate term of reimprisonment. But as appellate counsel points out, the prosecutor noted that 24 months was the statutory maximum in recommending a term of that length. The probation officer also had alerted the district court in writing that 24 months was the maximum. The court said nothing suggesting a misunderstanding about the statutory maximum, and the court even referred to 18 U.S.C. § 3583, which defined that maximum, . when announcing the 21-month term. Thus, on this record Wheeler could not make a meritorious claim" }, { "docid": "4161575", "title": "", "text": "exists on direct appeal. See Massaro v. United States, 538 U.S. 500, 505, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Schuh, 289 F.3d 968, 976 (7th Cir.2002). And on the off chance that Isom might have a valid postconviction claim that trial counsel was ineffective for failing to raise a Kimbrough argument, it would be premature for us to discuss that question. At oral argument we also asked appellate counsel if he wished us to address the forfeited Kimbrough claim as a matter of plain error in lieu of his ineffective-assistance claim, which we have power to do, see United States v. Olano, 507 U.S. 725, 733-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Silber v. United States, 370 U.S. 717, 717-18, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962). But counsel declined our invitation. Conclusion Because the district court’s relevant-conduct determination rested on reliable evidence, we Affirm. . \"Eight-ball” is a street term for one-eighth of an ounce. See United States v. Plummer, 581 F.3d 484, 486 (7th Cir.2009), cert. denied, - U.S. -, 130 S.Ct. 1105, 175 L.Ed.2d 920 (2010). . The presentence report’s reference to 80.2 grams is a mystery, and the parties offer no explanation for its source. The crimes of conviction accounted for 72.8 grams, and Isom contends that he was properly held accountable for an additional 9 grams (3.4 + 5.6). . Isom overstates the increase in the guidelines range. He asserts that the inclusion of the relevant conduct increased his range from 168-210 months to 262-327 months. But Isom's calculations overlook the 20-year mandatory minimum that applies because of his prior conviction for a felony drug offense. See 21 U.S.C. § 841(b)(1)(A). If a statutory minimum sentence is greater than the maximum of the applicable guideline range, then that statutory minimum sentence becomes the bottom of the guideline range. See U.S.S.G. § 5GI.l(b); United States v. Gibbs, 578 F.3d 694, 695 (7th Cir.2009)." } ]

[ { "docid": "23345422", "title": "", "text": "version of the facts, Wilson would have considered himself an employee undergoing reassignment to some undetermined new position, so that he would have had no idea at the time that his termination letter meant what it said. The difficulty is that the conclusory allegations in Wilson’s affidavit directly contradict his prior sworn depositions. In particular, Wilson’s affidavit constitutes an about-face on the crucial question of whether his supervisor told him that he was being terminated on June 30, 1982. The critical implication created by Wilson’s revised testimony—that he believed that his employment with Westinghouse would continue at a reduced salary indefinitely during his reassignment—is supported by no other evidence in the record, and flies in the face of Wilson’s admission that he had applied to over fifty prospective employers in the months after he received his termination letter. Joint Appendix at 57-62. While district courts must exercise extreme care not to take genuine issues of fact away from juries, “(a) party should not be allowed to create issues of credibility by contradicting his own earlier testimony.” Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365-66 (8th Cir.1983). Ambiguities and even conflicts in a deponent’s testimony are generally matters for the jury to sort out, but a district court may grant summary judgment where a party’s sudden and unexplained revision of testimony creates an issue of fact where none existed before. Otherwise, any party could head off a summary judgment motion by supplanting previous depositions ad hoc with a new affidavit, and no case would ever be appropriate for summary judgment. Id. at 1365. On the facts of this case, we agree with the District Court that Wilson’s revised account of his termination did not create a genuine issue of fact on which a jury could reasonably find that the limitations period was tolled, and so we affirm its summary judgment for Westinghouse on Wilson’s termination claim. It is unnecessary to decide whether Wilson’s revised version of the facts, if accepted, would amount to the kind of affirmative misconduct necessary to create equitable tolling under the rule of Kriegesmann" } ]

[ { "docid": "13016837", "title": "", "text": "record is clear that as of 1984, Mr. Knudsen knew that he had PTSD, that it was a progressive disease, and that he needed counseling for it. When he was explicitly denied counseling by the VA in 1984, he knew, or reasonably should have known, both the existence and cause of his injury. He needed counseling to prevent Ms PTSD from becoming worse, and he was denied treatment. His failure to understand exactly how debilitating his disease would become without treatment does not justify tolling the statute of limitations. K.E.S. v. United States, 38 F.3d 1027, 1029-1030 (8th Cir.1994). Mr. Knudsen’s affidavit stating that he did not know that PTSD would get worse without treatment does not alter the Court’s conclusion that the statute of limitations bars his claim. In his Amended Complaint, Mr. Knudsen alleged that Dr. Zitzow told him that he had PTSD and recommended continued treatment to prevent his condition from becoming worse. In a deposition, Mr. Knudsen confirmed this fact. Mr. Knudsen’s later affidavit contradicting his pleading and his deposition testimony cannot create a genuine issue of material fact for purposes of summary judgment. American Airlines, Inc. v. KLM Royal Dutch Airlines, Inc., 114 F.3d 108, 111 (8th Cir.1997); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365 (8th Cir.1983). Furthermore, factual statements in a party’s pleadings are generally binding on that party unless the pleading is amended. Missouri Housing Development Comm’n v. Brice, 919 F.2d 1306, 1314 (8th Cir.1990); State Farm Mutual Automobile Ins. Co. v. Worthington, 405 F.2d 683, 686 (8th Cir.1968). “[A] party is bound by what it states in its pleading.... [Although the rule smacks of legalism, judicial efficiency demands that a party not be allowed to controvert what it has already unequivocally told a court by the most formal and considered means possible.” Soo Line R. Co. v. St. Louis Southwestern Ry. Co., 125 F.3d 481, 483 (7th Cir.1997). While Mr. Knudsen’s later affidavit states that he did not know his PTSD would get worse without treatment, a fair reading of his Amended Complaint shows that Dr. Zitzow told" }, { "docid": "6420303", "title": "", "text": "depositions ad hoc with a new affidavit, and no case would ever be appropriate for summary judgment. Wilson v. Westinghouse Elec. Corp., 838 F.2d 286, 289 (8th Cir.1988) (internal citations and quotation marks omitted). Bass v. City of Sioux Falls, 232 F.3d 615, 619 (8th Cir.1999); accord Dotson v. Delta Consolidated Indus., Inc., 251 F.3d 780, 781 (8th Cir.2001) (“We have held many times that a party may not create a question of material fact, and thus forestall summary judgment, by submitting an affidavit contradicting his own sworn statements in a deposition. See, e.g., American Airlines, Inc. v. KLM Royal Dutch Airlines, Inc., 114 F.3d 108, 111 (8th Cir. 1997), and Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364-65 (8th Cir.1983).”); Plymouth Foam Prods., Inc. v. City of Becker, 120 F.3d 153, 155 n. 3 (8th Cir.1997) (to the extent that the affi-ant’s affidavit conflicts with his earlier deposition testimony, his affidavit testimony should be disregarded); RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 402 (8th Cir.1995) (same). The Eighth Circuit Court of Appeals has explained that the rule that a party cannot create a “sham” issue of fact in an effort to defeat summary judgment by filing an affidavit directly contradicting prior deposition testimony “is a sound one,” because “if testimony under oath could be ‘abandoned many months later by the filing of an affidavit, probably no cases would be appropriate for summary judgment.’ ” Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1030 (8th Cir.2000) (quoting Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1366 (8th Cir.1983)). However, the Eighth Circuit Court of Appeals has also explained that, where the affidavit testimony seems consistent with the affiant’s prior deposition testimony, or simply adds more detailed information, the court may properly consider the affidavit on summary judgment. Bass, 232 F.3d at 619. Similarly, the court has recognized “that there are ‘narrow circumstances’ in which a subsequent affidavit is appropriate, such as to explain certain aspects of the deposition testimony or where the pri- or testimony reflects confusion on the part" }, { "docid": "5403405", "title": "", "text": "on the City’s claim of negligent misrepresentation. We review a district court’s grant of summary judgment de novo. Stuart v. General Motors Corp., 217 F.3d 621, 630 (8th Cir. 2000). A. Striking of Sparks’s Affidavit The City first argues that the district court erred in striking Sparks’s affidavit from the record, claiming that Sparks’s subsequent affidavit does not directly contradict his previous deposition testimony. The City relied on Sparks’s affidavit in response to SWBT’s motion for summary judgment. SWBT counters that the district court did not err in striking the affidavit because it amounted to a “sham” affidavit under this court’s precedent. Under Federal Rule of Civil Procedure 56(c), we will sustain an entry of summary judgment only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law.” Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1363 (8th Cir.1983). In Camfield, we addressed “the troublesome issue of whether summary judgment may be granted when one of the parties after giving a deposition later files an affidavit with directly contrary statements.” Id. In affirming the district court’s grant of summary judgment for the defendant, this court held that an affidavit filed by the plaintiff in opposition to a motion for summary judgment that directly contradicted the plaintiffs previous deposition testimony was insufficient to create a genuine issue of material fact under Rule 56. Id. at 1365. We stated: The very purpose of summary judgment under Rule 56 is to prevent “the assertion of unfounded claims or the interposition of specious denials or sham defenses ....” 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2712 (1983). If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own earlier testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of" }, { "docid": "22114266", "title": "", "text": "whether the conflict between Dr. Franks’ testimony and his subsequent affidavit is sufficient to preclude summary judgment against him. We conclude that, under the circumstances of this case, summary judgment should be upheld. There is authority for the proposition that in determining whether a material issue of fact exists, an affidavit may not be disregarded because it conflicts with the affiant’s prior sworn statements. See 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2738, at 473-74 (2d ed. 1983); 6 (Part 2) J. Moore & J. Wicker, Moore’s Federal Practice 1156.22[1], at 56-1325 to 56-1326 (1985 ed.). In assessing a conflict under these circumstances, however, courts will disregard a contrary affidavit when they conclude that it constitutes an attempt to create a sham fact issue. See, e.g., Foster v. Arcata Associates, Inc., 772 F.2d 1453, 1462 (9th Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 1267, 89 L.Ed.2d 576 (1986); Biechele v. Cedar Point, Inc., 747 F.2d 209, 215 (6th Cir.1984); Van T. Junkins & Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657-58 (11th Cir.1984); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364 (8th Cir.1983); Perma Research & Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969). Underlying those decisions is the conclusion that the utility of summary judgment as a procedure for screening out sham fact issues would be greatly undermined if a party could create an issue of fact merely by submitting an affidavit contradicting his own prior testimony. Camfield Tires, 719 F.2d at 1365. Factors relevant to the existence of a sham fact issue include whether the affiant was cross-examined during his earlier testimony, whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain. See Camfield, 719 F.2d at 1364-65; Perma Research, 410 F.2d at 578. These factors convince us that Dr. Franks’ affidavit should be disregarded in considering the propriety of summary judgment. He was" }, { "docid": "22079201", "title": "", "text": "the court below, as an Appendix to this opinion.) The Union relied on these admissions when it moved for summary judgment, whereupon plaintiffs Babrocky, Davis and Ross filed affidavits averring that they were each “confident that [the Union] was processing my grievances along with those of the other grievants between January and March 30, 1981” (Pltfs.’ App. C 21, 25, 29). The district court determined that these statements were little more than bald assertions, entirely lacking in any recounting of specific facts such as required by Fed.R.Civ.P. 56(e). Because conelusory allegations could not create a conflict with plain admissions in deposition testimony, the district court granted summary judgment. We agree. Plaintiffs confuse credibility issues with the district court’s duty to ignore sham issues in determining the appropriateness of summary judgment. The Eighth Circuit addressed this precise question in Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361 (8th Cir., 1983), where it declared that a “party should not be allowed to create issues of credibility by contradicting his own earlier testimony.” Id. at 1366. Otherwise, the very purpose of the summary judgment motion — to weed out unfounded claims, specious denials, and sham defenses — would be severely undercut. Id. at 1365. That same analysis applies to the instant situation. Were the conflict at issue between a deposition and an affidavit given by two separate individuals, then summary judgment would be inappropriate because the district court may not weigh conflicting evidence. See, e.g., Simler v. Conner, 372 U.S. 221, 222-223, 83 S.Ct. 609, 610-611, 9 L.Ed.2d 691 (1963) (per curiam). The situation is quite different when a plaintiff has directly contradicted her own earlier statements, without explaining the contradiction or attempting to resolve the disparity. For example, in Kennett-Murray Corp. v. Bone, 622 F.2d 887 (5th Cir.1980), the Fifth Circuit concluded that summary judgment was inappropriate when a party submitted an affidavit conflicting with that party’s earlier deposition testimony, but only because the affidavit explained certain aspects of the deposition by clarifying ambiguities created by confusing questioning of the defendant. It did so by referring in great detail to" }, { "docid": "5403407", "title": "", "text": "fact. Id. We emphasized that while summary judgment “is to be reserved for those cases in which there is no genuine material issue of fact for determination,” if “testimony under oath ... can be abandoned many months later by the filing of an affidavit, probably no cases would be appropriate for summary judgment.” Id. No party should be allowed to create “issues of credibility” by contradicting his own previous testimony. Id. at 1366. District courts, however, must use extreme care in examining such issues and only grant summary judgment where “the conflicts between the deposition and affidavit raise only sham issues.” Id. Accordingly, when the affiant states in his affidavit that he was confused in his deposition or where the affiant needs to explain portions of his deposition testimony that were unclear, the district court should not strike the affidavit from the record. Id. at 1364-65. In addition, when the affiant’s affidavit does not actually contradict his earlier testimony, the district court should not strike the affidavit from the record. Bass v. City of Sioux Falls, 232 F.3d 615, 618 (8th Cir.1999). Here, the district court “articulat[ed] with care its reasons” for finding that Sparks’s affidavit contradicted his prior deposition testimony. Camfield, 719 F.2d at 1366. First, while Sparks testified in his deposition that Hansen told him that SWBT “might be” started with the relocation by July 1, 2000, he stated in his affidavit that Hansen told him that SWBT would “start work before the end of June 2000 so as to not interfere with the Contractor’s work,” which was to commence on July 5, 2000. The two statements are inconsistent because Hansen could not say that SWBT might start the relocation by July 1, 2000, and simultaneously commit SWBT to definitively starting the relocation before June 30, 2000. Second, Sparks’s claim in his affidavit that Hansen told him that SWBT was “committed to working ahead of the City’s contractor” conflicts with his e-mail to Co-coran in which he wrote that he “never could figure out how they were going to relocate before the contractor completed the cuts and fills" }, { "docid": "10811308", "title": "", "text": "1109 (8th Cir.1998). We hold that Mr. Dotson failed to establish a prima facie case. In particular, he did not show that he applied for a promotion for an available position and was rejected, because, on the present record, no reasonable fact finder could conclude that he ever submitted an application to Delta for the group leader’s position, or ever indicated to anyone in Delta’s management that he wanted the job. In his deposition, Mr. Dotson testified that he was waiting for Delta to post a notice of the opening for a group leader before he applied for it. He also stated that he “may” have talked to some of his supervisors about the situation, but he admitted that he asked them only general questions regarding Delta’s plans for filling the vacant position and did not mention to any of them that he wanted a chance to apply for the job. Despite his deposition testimony, Mr. Dotson disputes the facts that he did not apply for the opening for a group leader and that he never informed Delta’s management of his interest in the job. He points to an affidavit that he filed in the district court that stated that he discussed the job opening with his supervisors and asked to be considered for it. Because this account of what happened differed from Delta’s account, Mr. Dotson maintains that a question of material fact existed that precluded the district court from granting summary judgment to Delta. We reject this contention, because we have held many times that a party may not create a question of material fact, and thus forestall summary judgment, by submitting an affidavit contradicting his own sworn statements in a deposition. See, e.g., American Airlines, Inc. v. ELM Royal Dutch Airlines, Inc., 114 F.3d 108, 111 (8th Cir.1997), and Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364-65 (8th Cir.1983). Mr. Dotson also stated in his affidavit that he was never given a chance to apply for the group leader’s position be cause Delta never posted a notice indicating that it was accepting applications for" }, { "docid": "23516535", "title": "", "text": "deponent is under no obligation to volunteer information not fairly sought by the questioner, we see no reason to apply Reid and its progeny to such a situation. See Bass v. City of Sioux Falls, 232 F.3d 615, 618 (8th Cir.1999) (reversing the district court’s decision to disregard an allegedly inconsistent affidavit because the deponent “had no duty to volunteer [the relevant] information during the deposition absent a question from plaintiffs’ counsel seeking that information”); see also In re B-E Holdings, Inc., 240 B.R. 751, 753 (Bkrtcy. E.D.Wis.1999) (observing that although deponents must appear and provide forthright answers, they need not “volunteer information, explain trial strategies, or reveal privileged information”). Our conclusion is in accord with the variations of the Reid rule adopted by our sister circuits. As the Supreme Court has observed, the lower federal courts have held with virtual unanimity that a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party’s earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999) (collecting cases). These rules invariably reflect the importance of distinguishing legitimate efforts to supplement the summary judgment record from attempts to create a sham issue of material fact. The Fifth Circuit, for example, has held that a nonmoving party “cannot defeat a motion for summary judgment by submitting an affidavit [that] directly contradicts, without explanation, his previous testimony.” Albertson v. T.J. Stevenson & Co., Inc., 749 F.2d 223, 228 (5th Cir.1984). That court does not, however, permit a district court to strike or “disregard a party’s affidavit merely because it conflicts to some degree with an eaidier deposition.” Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893-94 (5th Cir.1980) (holding that the district court erred in refusing to consider an affidavit that was “not inherently inconsistent” with the party’s deposition testimony) (emphasis added). Rather, the post-deposition affidavit should be considered unless “the issue" }, { "docid": "6420302", "title": "", "text": "not a pretext for [race] discrimination”). In light of the foregoing, we hold that the district court did not err in considering [the affiant’s] affidavit in support of [the defendant’s] motion for summary judgment. Aucutt, 85 F.3d at 1318. b. Contradiction of prior testimony As to contradiction of prior testimony, the Eighth Circuit Court of Appeals recently reiterated the following principles: It is well-settled that “[p]arties to a motion for summary judgment cannot create sham issues of fact in an effort to defeat summary judgment.” American Airlines, Inc. v. KLM Royal Dutch Airlines, Inc., 114 F.3d 108, 111 (8th Cir. 1997). Consequently, a party should not be allowed to create issues of credibility by contradicting his own earlier testimony. Ambiguities and even conflicts in a deponent’s testimony are generally matters for the jury to sort out, but a district court may grant summary judgment where a party’s sudden and unexplained revision of testimony creates an issue of fact where none existed before. Otherwise, any party could head off a summary judgment motion by supplanting previous depositions ad hoc with a new affidavit, and no case would ever be appropriate for summary judgment. Wilson v. Westinghouse Elec. Corp., 838 F.2d 286, 289 (8th Cir.1988) (internal citations and quotation marks omitted). Bass v. City of Sioux Falls, 232 F.3d 615, 619 (8th Cir.1999); accord Dotson v. Delta Consolidated Indus., Inc., 251 F.3d 780, 781 (8th Cir.2001) (“We have held many times that a party may not create a question of material fact, and thus forestall summary judgment, by submitting an affidavit contradicting his own sworn statements in a deposition. See, e.g., American Airlines, Inc. v. KLM Royal Dutch Airlines, Inc., 114 F.3d 108, 111 (8th Cir. 1997), and Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364-65 (8th Cir.1983).”); Plymouth Foam Prods., Inc. v. City of Becker, 120 F.3d 153, 155 n. 3 (8th Cir.1997) (to the extent that the affi-ant’s affidavit conflicts with his earlier deposition testimony, his affidavit testimony should be disregarded); RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 402 (8th Cir.1995) (same). The" }, { "docid": "6420304", "title": "", "text": "Eighth Circuit Court of Appeals has explained that the rule that a party cannot create a “sham” issue of fact in an effort to defeat summary judgment by filing an affidavit directly contradicting prior deposition testimony “is a sound one,” because “if testimony under oath could be ‘abandoned many months later by the filing of an affidavit, probably no cases would be appropriate for summary judgment.’ ” Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1030 (8th Cir.2000) (quoting Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1366 (8th Cir.1983)). However, the Eighth Circuit Court of Appeals has also explained that, where the affidavit testimony seems consistent with the affiant’s prior deposition testimony, or simply adds more detailed information, the court may properly consider the affidavit on summary judgment. Bass, 232 F.3d at 619. Similarly, the court has recognized “that there are ‘narrow circumstances’ in which a subsequent affidavit is appropriate, such as to explain certain aspects of the deposition testimony or where the pri- or testimony reflects confusion on the part of the witness.” Herring, 207 F.3d at 1030-31 (citing Camfield Tires, Inc., 719 F.2d at 1364-65). In such circumstances, “it would be for the jury to resolve the discrepancy in the deposition testimony and the affidavit.” Id. at 1031. 2. Application of the standards a. Mr. Bernard’s affidavit IANR specifically challenges the following averments in paragraph 6 of Mr. Bernard’s affidavit: [I]t is my understanding and belief that the company that originally leased the [MKCX 4302 and MKCX 4303] locomotives to the Canadian American Railway Company (a.k.a. CDAC), MK Rail Corporation, considered both units to be leaders (i.e., intended to be occupied by a crew), and not slugs, or B units. See IANR’s First Motion to Strike Affidavit of Francois Bernard at 2 (quoting Affidavit of Francois Bernard of March 5, 2002, ¶ 6). IANR contends that one of the issues on the parties’ motions for summary judgment is whether Helm is attempting to recover repair costs that would make the MKCX 4303 locomotive a “leader,” not merely a “slug” or “B unit,” and thus," }, { "docid": "6389195", "title": "", "text": "and the post-deposition affidavits of her co-workers. The Commission argues that these post-deposition affidavits should be excluded because they contradict unambiguous deposition testimony of Mahan. In support of this position, the Commission cites to a line of federal court decisions holding that a contradictory post-deposition affidavit that does not contain “newly discovered” evidence or clarify a contradiction or ambiguity in the deposition cannot be admitted after a lengthy deposition as a basis for establishing a genuine issue of material fact to defeat summary judgment. See, e.g., S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495-95 (5th Cir. 1996) (“It is well settled that this court does not allow a party to defeat a motion for summary judgment using an affidavit that impeaches without explanation, sworn testimony.”); Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir.1995) (“Where deposition and affidavit are in conflict, the affidavit is to be disregarded unless it is demonstrable that the statement in the deposition was mistaken, perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy.”); Hackman v. Valley Fair, 932 F.2d 239, 241 (3rd Cir.1991) (“When, without a satisfactory explanation, a nonmovant’s affidavit contradicts earlier deposition testimony, the district court may disregard the affidavit in determining whether a genuine issue of material fact exists.”); Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262, 266-67 (9th Cir.1991); Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986); Foster v. Arcata Assoc., 772 F.2d 1453, 1462 (9th Cir.1985), cert. denied, 475 U.S. 1048, 106 S.Ct. 1267, 89 L.Ed.2d 576 (1986); Van T. Junkins & Assoc. v. U.S. Industries, 736 F.2d 656, 657 (11th Cir.1984) (“When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.”); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1366 (8th Cir.1983) (“only ... where the conflicts between the deposition and affidavit raise only" }, { "docid": "13016838", "title": "", "text": "cannot create a genuine issue of material fact for purposes of summary judgment. American Airlines, Inc. v. KLM Royal Dutch Airlines, Inc., 114 F.3d 108, 111 (8th Cir.1997); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365 (8th Cir.1983). Furthermore, factual statements in a party’s pleadings are generally binding on that party unless the pleading is amended. Missouri Housing Development Comm’n v. Brice, 919 F.2d 1306, 1314 (8th Cir.1990); State Farm Mutual Automobile Ins. Co. v. Worthington, 405 F.2d 683, 686 (8th Cir.1968). “[A] party is bound by what it states in its pleading.... [Although the rule smacks of legalism, judicial efficiency demands that a party not be allowed to controvert what it has already unequivocally told a court by the most formal and considered means possible.” Soo Line R. Co. v. St. Louis Southwestern Ry. Co., 125 F.3d 481, 483 (7th Cir.1997). While Mr. Knudsen’s later affidavit states that he did not know his PTSD would get worse without treatment, a fair reading of his Amended Complaint shows that Dr. Zitzow told Mr. Knudsen that he should continue treatment to prevent his PTSD from becoming worse. This fact is further supported by Mr. Knudsen’s deposition testimony. Because the statute of limitations bars his claim against the VA for failing to provide him with the care to which he was entitled, the District Court did not err in granting summary judgment for the United States. The judgment is affirmed. . The Honorable Lawrence L. Piersol, U.S. District Judge for the District of South Dakota. . The facts concerning this encounter are in dispute as are several other facts in the case. However, because this is an appeal from an order granting summary judgment, the facts are viewed in the light most favorable to the non-movant, Mr. Knudsen. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 601, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and Black Clawson Co., Inc. v. Kroenert Corp., 245 F.3d 759, 763 (8th Cir.2001)." }, { "docid": "6288802", "title": "", "text": "Herring did for an occupation. Herring concludes that the affidavit, coupled with the other evidence in the record, is sufficient to remove any genuine issue of material fact. Our analysis begins with the affidavit. Canada Life’s position is that it must be disregarded under the rule we set out in Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361 (8th Cir.1983). In Camfield, we held that a party cannot create a “sham” issue of fact in an effort to defeat summary judgment by filing an affidavit directly contradicting prior deposition testimony. Id. at 1365-66. Our rule is a sound one; if testimony under oath could be “abandoned many months later by the filing of an affidavit, probably no cases would be appropriate for summary judgment.” Id. at 1366. But we also recognized in Camfield that there are “narrow circumstances” in which a subsequent affidavit is appropriate, such as to explain certain aspects of the deposition testimony or where the prior testimony reflects confusion on the part of the witness. Id. at 1364-65. In the instant case, Dr. Duck-worth stated in his affidavit that he “confused” the occupation of Herring with that of his son, and offered a plausible reason why. We think this is the unique type of situation in which a subsequent affidavit is appropriate to clarify, rather than contradict, a deposition. Normally, in circumstances such as this, it would be for the jury to resolve the discrepancy in the deposition testimony and the affidavit. Cf. Kim v. Ingersoll Rand Co., 921 F.2d 197, 199 (8th Cir.1990) (apparent discrepancy in plaintiffs trial testimony and his earlier deposition testimony created a credibility question for the jury). But in this case, when we consider the affidavit with what is undisputed in the record, the evidence is such that no reasonable fact finder could return a verdict in Canada Life’s favor. See Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (“Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ”). In" }, { "docid": "10811309", "title": "", "text": "never informed Delta’s management of his interest in the job. He points to an affidavit that he filed in the district court that stated that he discussed the job opening with his supervisors and asked to be considered for it. Because this account of what happened differed from Delta’s account, Mr. Dotson maintains that a question of material fact existed that precluded the district court from granting summary judgment to Delta. We reject this contention, because we have held many times that a party may not create a question of material fact, and thus forestall summary judgment, by submitting an affidavit contradicting his own sworn statements in a deposition. See, e.g., American Airlines, Inc. v. ELM Royal Dutch Airlines, Inc., 114 F.3d 108, 111 (8th Cir.1997), and Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364-65 (8th Cir.1983). Mr. Dotson also stated in his affidavit that he was never given a chance to apply for the group leader’s position be cause Delta never posted a notice indicating that it was accepting applications for the job. Even if a racially motivated failure to post a job opportunity might conceivably relieve a plaintiff of the need to prove, as part of the required prima facie showing, that he or she applied for the job, this is not such a case. The mere failure to post the opening in this instance cannot give rise to a reasonable inference that the failure was racially motivated because it is uncontroverted that Delta never posted a notice for any available position at any time before it promoted Mr. Vaughn. All of Delta’s employees, regardless of race, were supplied with the same amount of information about job openings, and in the same way. Cf Shannon v. Ford Motor Co., 72 F.3d 678, 681-84 (8th Cir.1996). Besides, although Delta never officially announced that it had an available position to fill, Mr. Dotson was undeniably aware of the job opening. With that knowledge, Mr. Dotson could have more actively indicated an interest in being a candidate for the position. II. In sum, because Mr. Dotson failed to" }, { "docid": "18788671", "title": "", "text": "inconsistent statements made by Radobenko the deponent and Radobenko the affiant.” Id. at 543. The court recognized that “[t]he very object of summary judgment is to separate real and genuine issues from those that are formal or pretended,” id. at 544 (citation omitted), and concluded “that the issues of fact created by Radobenko are not issues which this Court could reasonably characterize as genuine; rather, they are sham issues which should not subject the defendants to the burden of a trial.” Id. The Eleventh Circuit authority is Van T. Junkins & Associates v. U.S. Industries, 736 F.2d 656 (11th Cir.1984). In that case, this court affirmed a grant of summary judgment, holding that a district court may properly find that a party’s contradictory affidavit is a sham. “When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Id. at 657. See also Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1366 (8th Cir.1983) (“only ... where the conflicts between the deposition and affidavit raise only sham issues should summary judgment be granted”); Price v. Worldvision Enterprises, 455 F.Supp. 252, 260 (S.D.N.Y.1978) (affidavit testimony departed “so markedly from the prior deposition ... as to brand as bogus the factual issues sought to be raised”), aff'd mem., 603 F.2d 214 (2d Cir.1979). The crux of these cases rests with the reviewing court’s determination that an issue raised by an affidavit is a sham because it contradicts or conflicts with earlier deposition testimony. In Kennett-Murray Corp. v. Bone, 622 F.2d 887 (5th Cir.1980), however, the Fifth Circuit cautioned of the dangers inherent in this approach. Certainly, every discrepancy contained in an affidavit does not justify a district court’s refusal to give credence to such evidence. In light of the jury’s role in resolving questions of credibility, a district court should not reject the content of an affidavit even if it is at odds with statements made in an earlier deposition." }, { "docid": "3996343", "title": "", "text": "distinct impression that MGE was going to terminate older employees. . In this regard, Fast argues that Nelson mis-characterized one of their conversations. Fast claims that Nelson asked how things were going in his job, and he responded “fine.” Fast claims that Nelson thereafter took his, statement out of context to suggest that he had no new ideas for making MGE a more efficiently-run company. .. The CEO made this statement approximately six months after the last plaintiff was terminated. . In Bevan v. Honeywell, Inc., 118 F.3d 603 (8th Cir.1997), Judge Hansen provided a thorough statement differentiating between stray remarks and remarks made by a supervisor that affect the decisional process. See id. at 610. He explained that although stray remarks, standing alone, would fail to raise an inference of age discrimination, “[i]n a pretext case, ... such comments are 'surely the kind of fact which could' cause a reasonable trier of fact to raise an eyebrow,’ MacDissi v. Valmont Indus., Inc., 856 F.2d 1054, 1058 (8th Cir.1988), thus providing ‘additional threads of evidence,’ Morgan v. Arkansas Gazette, 897 F.2d 945, 951 (8th Cir.1990), that are ’relevant to the jury.’ \" Id. (quoting Ryther, 108 F.3d at 844.) . Southern Union argues that Fast's deposition testimony, taken alone, fails to raise genuine issues of material fact and his affidavit is a sham. We disagree. “[0]nly in circumstances ... where the conflicts between the deposition and affidavit raise ... sham issues should summary judgment be granted.\" Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1366 (8th Cir.1983). See also RSBI Aerospace, Inc., v. Affiliated FM Ins. Co., 49 F.3d 399, 402 (8th Cir.1995). Nothing in Fast’s affidavit, when compared to his deposition testimony, leads to the conclusion that his affidavit was a sham. In his deposition testimony, Fast provided evidence that age may have been a motivating factor in Nelson’s decision to terminate him. Rather than contradict his deposition testimony, Fast’s affidavit supplements his deposition testimony." }, { "docid": "6389196", "title": "", "text": "lapse of memory is in the circumstances a plausible explanation for the discrepancy.”); Hackman v. Valley Fair, 932 F.2d 239, 241 (3rd Cir.1991) (“When, without a satisfactory explanation, a nonmovant’s affidavit contradicts earlier deposition testimony, the district court may disregard the affidavit in determining whether a genuine issue of material fact exists.”); Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262, 266-67 (9th Cir.1991); Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986); Foster v. Arcata Assoc., 772 F.2d 1453, 1462 (9th Cir.1985), cert. denied, 475 U.S. 1048, 106 S.Ct. 1267, 89 L.Ed.2d 576 (1986); Van T. Junkins & Assoc. v. U.S. Industries, 736 F.2d 656, 657 (11th Cir.1984) (“When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.”); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1366 (8th Cir.1983) (“only ... where the conflicts between the deposition and affidavit raise only sham issues should summary judgment be granted”); Perma v. Singer Co., 410 F.2d 572, 577-78 (2nd Cir.1969); see also, 10A Charles Alan Wright. Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 2726 (2d. Supp.1997)(citing eases). See generally, Jeffrey L. Freeman, J.D., Propriety, Under Rule 56 of the Federal Rules of Civil Procedure, of Granting Summary Judgment When Deponent Contradicts in Affidavit Earlier Admission of Fact in Deposition, 131 A.L.R. Fed. 403 (1996). This Court summarily addressed this issue in Lowery v. AIRCO, Inc., 725 F.Supp. 82, 85-86 (D.Mass.1989), stating that “[w]hen a party has given clear answers to unambiguous deposition questions, he or she cannot raise an issue of fact by submitting a subsequent affidavit that merely contradicts the deposition testimony.” There is, however, no conflict if the post-deposition affidavit clarifies ambiguities created by the deposition about material issues. Id. at 86. The Court did not discuss the parameters of this rule as the Court found no direct conflict between the deposition and the affidavit of a nonparty expert witness. Id." }, { "docid": "23516534", "title": "", "text": "opinions is unwarranted. The rule set forth in Reid is grounded on the sound proposition that a party should not be able to create a disputed issue of material fact where earlier testimony on that issue by the same party indicates that no such dispute exists. Reid and its progeny have thus barred the non-moving party from avoiding summary judgment by simply filing an affidavit that directly contradicts that party’s previous testimony. See, e.g., Peck v. Bridgeport Machines, Inc., 237 F.3d 614, 619 (6th Cir.2001) (holding that a post-deposition affidavit submitted by the plaintiffs expert was “not cognizable for purposes of the summary judgment decision” because it was “plainly contradictory” to the expert’s previous deposition testimony). This is a far cry, however, from preventing a party who was not directly questioned about an issue from supplementing incomplete deposition testimony with a sworn affidavit. Such an affidavit fills a gap left open by the moving party and thus provides the district court with more information, rather than less, at the crucial summary judgment stage. Because the deponent is under no obligation to volunteer information not fairly sought by the questioner, we see no reason to apply Reid and its progeny to such a situation. See Bass v. City of Sioux Falls, 232 F.3d 615, 618 (8th Cir.1999) (reversing the district court’s decision to disregard an allegedly inconsistent affidavit because the deponent “had no duty to volunteer [the relevant] information during the deposition absent a question from plaintiffs’ counsel seeking that information”); see also In re B-E Holdings, Inc., 240 B.R. 751, 753 (Bkrtcy. E.D.Wis.1999) (observing that although deponents must appear and provide forthright answers, they need not “volunteer information, explain trial strategies, or reveal privileged information”). Our conclusion is in accord with the variations of the Reid rule adopted by our sister circuits. As the Supreme Court has observed, the lower federal courts have held with virtual unanimity that a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly" }, { "docid": "6420301", "title": "", "text": "that he evaluated the personnel file of each employee under his supervision before he decided to lay off the plaintiff; and that he had repeatedly admonished the plaintiff to improve his demeanor towards park guests while performing his security duties, but that the plaintiff had failed to do so. Id. The court concluded as follows: Thus, [the affiant] had firsthand knowledge of the reasons why [the plaintiff] was selected for discharge. Fed. R.Civ.P. 56(e) does not require [the affi-ant] to have witnessed every incident supporting the termination decision, so long as he had personal knowledge that the decision was for reasons unrelated to age-based discrimination. Cf. Gill v. Reorganized School Dist., 32 F.3d 376, 379 (8th Cir.1994) (school superintendent who discharged plaintiff teacher after receiving report that student had accused plaintiff of making racially derogatory remarks satisfactorily rebutted plaintiffs prima facie case with a legitimate reason for plaintiffs discharge; superintendent did not have to have observed incident in question, because crucial issue was “whether [the reported incident] was the real reason for [Gill’s] termination and not a pretext for [race] discrimination”). In light of the foregoing, we hold that the district court did not err in considering [the affiant’s] affidavit in support of [the defendant’s] motion for summary judgment. Aucutt, 85 F.3d at 1318. b. Contradiction of prior testimony As to contradiction of prior testimony, the Eighth Circuit Court of Appeals recently reiterated the following principles: It is well-settled that “[p]arties to a motion for summary judgment cannot create sham issues of fact in an effort to defeat summary judgment.” American Airlines, Inc. v. KLM Royal Dutch Airlines, Inc., 114 F.3d 108, 111 (8th Cir. 1997). Consequently, a party should not be allowed to create issues of credibility by contradicting his own earlier testimony. Ambiguities and even conflicts in a deponent’s testimony are generally matters for the jury to sort out, but a district court may grant summary judgment where a party’s sudden and unexplained revision of testimony creates an issue of fact where none existed before. Otherwise, any party could head off a summary judgment motion by supplanting previous" }, { "docid": "20295208", "title": "", "text": "on a motion for summary judgment.” Mack v. United States, 814 F.2d 120, 124 (2d Cir.1987); see Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986); Kalekiristos v. CTF Hotel Management Corp., 958 F.Supp. 641, 669 (D.D.C. 1997). Plaintiff was deposed by counsel for all defendants, and plaintiffs counsel had more than one chance to correct any confusion plaintiff may have suffered. Although plaintiffs counsel had every opportunity to clarify plaintiffs testimony regarding FDA approval both during the deposition and within thirty days thereafter, see Rule 30(e), Fed.R.Civ.P., he made no attempt to do so. Furthermore, despite plaintiffs allegations to the contrary, her affidavit does not “clarify” confusing testimony; her deposition testimony with regard to this particular point, although damaging to her case, was quite clear: she would have gone ahead with the surgery even if she had known the pedicle screws had not been approved by the FDA. “When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Van T. Junkins and Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir. 1984). The Court finds no reason to allow plaintiff to effectively erase from the record her sworn deposition testimony with a later-filed affidavit submitted nearly four months after her deposition was taken. Statements in later-filed affidavits or declarations, often prepared by lawyers, are at the very least less reliable than deposition testimony developed through the crucible of cross-examination and a fuller exploration of issues. “If testimony under oath ... can be abandoned many months later by the filing of an affidavit, probably no cases would be appropriate for summary judgment. A party should not be allowed to create issues of credibility by contradicting [her] own earlier testimony.” Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365-66 (8th Cir. 1983); see Rios v. Bigler, 67 F.3d 1543, 1551—52 (10th Cir.1995). That is particularly true in a situation like that presented here, where the" } ]

[ { "docid": "2328807", "title": "", "text": "feels aggrieved about the administration of or the progress made in carrying out these statutory and executive directives. See Gnotta v. United States, 415 F.2d 1271 at 1278. The cases cited by plaintiffs giving executive orders the force and effect of law still do not provide a legal basis for plaintiffs’ complaints. We are of the opinion that the job classifications are essentially matters committed by law to administrative discretion (agency discretion); that proper procedures were observed by the Postal Service in setting up this classification; that the issues attempted to be raised by the plaintiffs are not justiciable nor reviewable in the courts; and that the complaint presents no basis for federal court jurisdiction. The principles discussed and held applicable in Gnotta, supra, govern this factual situation. Aside from the fact that the United States Government has not consented to a suit of this type, the plaintiffs have not demonstrated the violation of any legal or constitutional right that would be the basis for jurisdiction in the federal court. The agency action is not reviewable, nor have there been any federal legal or constitutional rights violated. The District Court properly found that there were no racial overtones to this complaint so as to invoke the protection of the Civil Rights statutes and applicable constitutional provisions. From this ruling the plaintiffs did not appeal. The classifications at best constitute discretion in administrative procedures which are specifically exempt from judicial review by 5 U.S.C. § 701(a) (2). The federal courts are courts of limited jurisdiction created to adjudicate legal causes within their jurisdiction and were not established to mediate any and all types of complaints and alleged wrongs; and they certainly were not established to operate the administrative agencies of government. As appropriately noted by Judge Blackmun, now Mr. Justice Blackmun, in Gnotta v. United States, 415 F.2d at 1276: “Surely, promotion or non-promotion of employees within a department is a matter of supervisory discretion and not ordinarily subject to judicial review. 5 U.S.C. § 554(a) (2) (citations omitted). * * * * * •>!■ “Professor Davis asks ‘Do we want" } ]

[ { "docid": "16908861", "title": "", "text": "cooperatives, Congress enacted the Farm Credit Act of 1933, sufra, pursuant to which, the system of banks for cooperatives was established as part of the overall structure of the Farm Credit Administration. This agency in considerably expanded form succeeded to the functions of the previous Federal Farm Loan Board. The capital of the banks for cooperatives was derived from public funds appropriated by Congress, except that additional capital was supplied pursuant to a provision of the founding act that a borrowing cooperative had to purchase $100 of stock of the lending bank for each $2,000 borrowed. However, such stock was redeemable on demand at the option of the cooperative upon the payment of the outstanding loan. Defendant’s original capital investment, or stock subscription, in the banks for cooperatives as they were established under the Farm Credit Act of 1933, supra, amounted to $110,000,000, with $5,000,000 provided to each of the 12 regional banks, and $50,000,000 to the Central Bank for Cooperatives. In time, tlie leaders of the system of banks for cooperatives evolved a plan of retirement of government-owned stock, utilizing the revolving fund method, commonly employed in supplying capital to farmers’ cooperatives by its members. In the operation of a farmers’ cooperative, usually the members contribute the initial capital, with further contributions being made by each member in succeeding years in proportion to his use of, or benefits received from, the cooperative, and with capital investment being periodically returned to members in order of its contribution. After a number of years of consideration of such a plan, Congress enacted the Farm Credit Act of 1953, 67 Stat. 390, which established the Federal Farm Credit Board to (a) exercise general direction and supervision over the performance of the system of banks for cooperatives, and to (b) consider and make recommendations to Congress on the best means for eventually retiring the government capital from the Farm Credit system. Pursuant to the recommendations of the Federal Farm Credit Board, Congress enacted the Farm Credit Act of 1955, 69 Stat. 655, effective January 1,1956, which provided a comprehensive plan for retirement of government-owned" }, { "docid": "5633096", "title": "", "text": "So.2d 265, 271 (Miss. 1985), the court held that in the absence of a confidential relationship, a bank would have no fiduciary duty to its depositor requiring it to ascertain the validity of a cheek before routing it to the drawee bank. See generally Robert C. Williamson & Brenda Kay Tanner, Lender Liability in Mississippi: A Survey, Comparison and Comment, 57 Miss.L.J. 1, 21-35 (1987). See also Production Credit Ass’n v. Ista, 451 N.W.2d 118, 121 (N.D.1990) (Production Credit Association does not owe fiduciary duty to borrower/shareholder except under special circumstances). Williams alleges no facts suggestive of a special relationship; and she cites no cases supporting her claim that an agricultural cooperative owes a fiduciary duty to its members. Williams’s second count charged the defendants with breaching the loan agreement. One clause made the loan “subject to the Farm Credit Act of 1971 and all acts amendatory thereof or supplementary thereto,” including, the parties agree, relevant administrative regulations. The Assistance Board argues that neither the statutes nor the regulations create enforceable duties, and it relies on cases that hold that no private right of action exists under the Farm Credit Act of 1971 or the Agricultural Credit Act of 1987. See Zajac v. Federal Land Bank, 909 F.2d 1181 (8th Cir.1990) (en banc) (citing cases). Assuming that to be correct, however, there would still be the possibility that by contract the Land Bank took on an enforceable obligation running parallel to the statutory and regulatory provisions. Cf. Mendel v. Production Credit Association of the Mid lands, 862 F.2d 180, 183 (8th Cir.1988) (“even where a federal act does not create a private cause of action for violation of the standards it prescribes, it may be that conduct violating the standards of conduct will give rise to a state common law cause of action”). Here, however, even assuming Mississippi law would give that effect to the loan agreement, plaintiff has failed to make out a violation of the statute or regulations. Plaintiffs claim rests essentially on a vague statement in the “Loan Policies and Operations” of the farm credit system: The" }, { "docid": "5273177", "title": "", "text": "was not arbitrary, capricious, an abuse of discretion, or illegal. The Court further finds that the regulation involved and set out above is not arbitrary or capricious in itself but is a valid regulation with merit and was properly promulgated by the Governor of the Farm Credit Administration under delegated power from Congress and is binding on the Plaintiff Association. The Plaintiff also urges herein that by virtue of Title 12 United States Code §§ 636a and 636d the removal provisions of the Plaintiff’s By-Laws as set out above and the regulation prohibiting the selling of insurance to borrowers of the Plaintiff Association by an officer of an association should be declared invalid and of no binding force and effect and by reason thereof the removal thereunder of the Secretary-Treasurer and Manager of Plaintiff should be declared void and of no force and effect because the Governor of the Farm Credit Administration under said Sections has failed under the declaration of policy of Congress to change the By-Laws of Plaintiff with reference to removal of its officers and to change the said regulation prohibiting the sale of life insurance by officers of the Plaintiff to its borrowers in some manner so as to increase borrower participation in the management and control of the permanent system of agricultural credit made .available to institutions operating under the supervision of the Farm Credit Administration. In this connection, the Plaintiff points out and the evidence establishes that the Plaintiff Association is now entirely owned by its members; that the Government owns no stock therein and has not owned any such stock since 1955. It appears that By-Laws of Credit Associations such as the Plaintiff and regulations of the Farm Credit Administration draw no distinction between wholly owned credit associations and non-wholly owned credit associations or those in which Government money is invested through stock ownership. The problem therefore before the Court is whether under a mere declaration of policy announced by Congress as stated in 12 United States Code § 636a this Court should strike down a certain provision of Plaintiff’s By-Laws and a" }, { "docid": "18303204", "title": "", "text": "production credit associations. The plaintiff argued that federal common law should govern, rather than state law, in order to effectuate the Farm Credit Act’s purpose. Although the Court agreed that there was a substantial federal interest in having credit available to farmers and that the federal government was pervasively involved in the creation and operation of production credit associations, the Court rejected the contention that federal common law should prevail. It concluded that the guiding principle for applying federal common law, a significant conflict between federal policy or interest and use of state law, was missing. “We are not persuaded that the substantial federal interest in successful operation of the Farm Credit System will be impaired by application of state law ... each production credit association is a separate entity with a local situs, and its business transactions are with farmers and ranchers in its locale.” Id. at 1125. The situation in Boyster is analagous to this case. As long as a state remedy is adequate to protect the Hartmans’ interests, it would be improper to intrude into this state law area. CONCLUSION The Farm Credit Act does not expressly provide a private cause of action for violation of its provisions, nor can one be implied. The United States Supreme Court has set forth four criteria for determining an implied remedy arising from a federal statute. Cort v. Ash, supra. Even assuming the Hartmans fall within the class for whose benefit the Farm Credit Act was enacted, the other three criteria are not met. Congress did not intend to provide a federal remedy, a private cause of action is not necessary to attain the underlying purpose of the Act, and the plaintiff’s cause of action is one traditionally relegated to state law. This Court certainly would not condone the conduct alleged here, but the Hartmans have an adequate remedy in the state court. Therefore, the case is dismissed without prejudice to the plaintiff." }, { "docid": "5273181", "title": "", "text": "ultimate ownership by borrowers. This matter involves the exercise of discretion under authority delegated by Congress to the Governor of the Farm Credit Administration and a general declaration of Congressional policy. It would not be proper for this Court to undertake to administer and exercise administrative type discretion vested in the Governor of the Farm Credit Administration, and in the process eliminate the removal provision of the Plaintiff’s ByLaws and the regulation of the Farm Credit Administration aimed at preventing a conflict of interest with reference to employees of Production Credit Associations. The Court therefore finds and concludes that the Governor of the Farm Credit Administration acted within his authority in removing the Secretary-Treasurer and Manager of the Plaintiff Association; that said action was based on said officer violating a valid regulation prohibiting him from selling life insurance to borrowers of the Plaintiff and the removal action of the Governor of the Farm Credit Administration was not arbitrary or capricious, an abuse of discretion or contrary to law. The Court further finds and concludes that such removal action is not vitiated by virtue of the declaration of policy announced by Congress in Title 12 United States Code § 636a. The Court further finds that the authority to approve salary increases for the officers of the Plaintiff Association rests with a separate corporate entity not a party to this action and that the Court should not entertain this complaint for such reason, as well as the fact that a salary increase for the Secretary-Treasurer and Manager of the Plaintiff has now become moot by the removal of the officer which this Court judicially determines has been legally accomplished. The cause of action in the Complaint of the Plaintiff is therefore dismissed and the preliminary injunction entered in the case whereby the Defendants were enjoined from removing the Secretary-Treasurer and Manager of the Plaintiff is vacated and said officer is forthwith removed pursuant to the removal action of the Governor of the Farm Credit Administration, which has been judicially reviewed and approved by this Court. . By 12 U.S.C. § 1131d, Congress" }, { "docid": "18303196", "title": "", "text": "infer a cause of action based solely on federal law? Cort v. Ash, 422 U.S. at 78, 95 S.Ct. at 2088. I. First, do the Hartmans fall within the class the statute was enacted to benefit? That is, does the statute create a federal right in favor of the plaintiff? A federal right has usually been found where an Act regulates the relationship between a plaintiff class and a defendant class, by imposing certain duties on the defendant class or proscribing certain conduct that Congress has found abusive. See, California v. Sierra Club, 451 U.S. 287, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979); Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981). The Farm Credit Act does not establish such a pervasive legislative scheme to control such a relationship. It neither imposes duties on production credit association nor does it proscribe any conduct. It merely creates the instrumentalities by which the American farmer may obtain needed credit. The purpose of the Act is to improve “the income and well-being of American farmers and ranchers by furnishing sound, adequate, and constructive credit.” 12 U.S.C. § 2001(a). It is to satisfy their credit needs while encouraging farmers and ranchers to participate on the management and ownership of the system. Daley v. Farm Credit Administration, 454 F.Supp. 953, 954 (D.Minn.1978). Thus, the statute does not create any private federal remedy. Interpreting the word “benefit”, however, in a light most favorable to the plaintiff, it is arguable that the Farm Credit Act was established to “help” farmers, and, therefore, the Hartmans do fall with the class the Act was enacted to benefit. The fact that an enactment is designed to benefit a particular class does not, alone, establish an intent that the statute be enforced through private litigation. Universities Research Assn., Inc. v. Coutu, 450 U.S. 754, 771, 101 S.Ct. 1451, 1462, 67 L.Ed.2d 662 (1981). II. The key factor is whether Congress intended to create a remedy. See, Universities Research" }, { "docid": "16908860", "title": "", "text": "Bank has consistently described the purchases and ownership of class C stock by its borrowing cooperatives as investment capital. The Springfield Bank for Cooperatives is one of 12 regional banks, which together with the Central Bank for Cooperatives, comprise a system of banks for cooperatives operated since 1983 under charters issued by the Farm Credit Administration pursuant to statutory authorization. Prior to the organization of the Farm Credit Administration and the system of banks for cooperatives pursuant to the Farm Credit Act of 1933, 48 Stat. 257, farmers generally as well as farmers’ cooperatives had encountered severe difficulties in securing adequate commercial credit at reasonable interest rates. Such problems had not been solved in the administration by the Federal Farm Loan Board of the Federal Farm Loan Act of 1916, 39 Stat. 360, enacted by Congress to provide loans by the Federal land banks on farm mortgage security to farmers and farmers’ cooperatives. To improve and expand the sources of credit at reasonable rates to farmers, and to stimulate the growth and development of farmers’ cooperatives, Congress enacted the Farm Credit Act of 1933, sufra, pursuant to which, the system of banks for cooperatives was established as part of the overall structure of the Farm Credit Administration. This agency in considerably expanded form succeeded to the functions of the previous Federal Farm Loan Board. The capital of the banks for cooperatives was derived from public funds appropriated by Congress, except that additional capital was supplied pursuant to a provision of the founding act that a borrowing cooperative had to purchase $100 of stock of the lending bank for each $2,000 borrowed. However, such stock was redeemable on demand at the option of the cooperative upon the payment of the outstanding loan. Defendant’s original capital investment, or stock subscription, in the banks for cooperatives as they were established under the Farm Credit Act of 1933, supra, amounted to $110,000,000, with $5,000,000 provided to each of the 12 regional banks, and $50,000,000 to the Central Bank for Cooperatives. In time, tlie leaders of the system of banks for cooperatives evolved a plan" }, { "docid": "9675673", "title": "", "text": "WOLLMAN, Circuit Judge. Clarence B. Bailey, formerly chief executive officer of the Osage Production Credit Association, seeks a declaratory judgment that the Federal Intermediate Credit Bank of St. Louis exceeded its lawful authority when in March 1984 it removed him from that position. The district court on cross motions for summary judgment found for the Bank, Bailey v. Federal Intermediate Credit Bank, 608 F.Supp. 1009 (W.D.Mo. 1985), and on appeal we affirm. The Osage Production Credit Association and the Federal Intermediate Credit Bank of St. Louis both are federally chartered instrumentalities of the United States functioning within the federal farm credit system as that system was reorganized by the Farm Credit Act of 1971, Pub.L. No. 92-181, 85 Stat. 583 (codified as amended at 12 U.S.C. §§ 2001-2260 (1982)). The farm credit system consists of twelve districts, each headed by a board of directors and each including one federal intermediate credit bank (plus other institutions not relevant here). The intermediate credit banks have responsibility for the production credit associations (PCA’s) within their geographic areas, with the PCA’s making the actual loans to individuals for farm-related purposes. PCA’s, however, fund such loans primarily through money borrowed in turn from intermediate credit banks. The farm credit system as a whole is regulated by the Farm Credit Administration (FCA), an independent executive agency which sets policy and exercises supervisory authority. The Federal Intermediate Credit Bank of St. Louis heads the farm credit district which encompasses the Osage PCA. In its letter removing Bailey as Osage chief executive officer, the Bank justified its action as an exercise of the supervisory powers vested in it by section 2072 of title 12 of the U.S.Code. Furthermore, it pointed to section 500.2 of the Osage PCA’s bylaws, wherein it is provided that a chief executive officer should serve at the pleasure of the PCA board or until “removed * * * by the bank.” PCA bylaws, however, are drawn up by the FCA and adopted in a standardized format (with options on some provisions) by the local associations. See 12 U.S.C. §§ 2091, 2252(a)(2). Thus, Bailey argues," }, { "docid": "18303200", "title": "", "text": "Moreover, 12 U.S.C. § 2258 suggests that the Congress contemplated that production credit associations would use the state courts and be governed by state laws in most controversies. Section 2258 provides that each institution of the farm credit system shall, for purposes of jurisdiction, be deemed a citizen of the state in which its principal office is located. In the 1971 Act, this section also included a provision that prohibited federal district court jurisdiction for production credit associations except on certain limited circumstances. Congress very clearly did not intend remedies in federal court. This prohibition was deleted in a 1975 amendment, not because the Congress had reconsidered a federal remedy, but because it presented problems when making certain types of loans. The 1971 Act gave product credit associations the authority to lend to producers of aquatic products. However, since such producers fell under maritime law and the exclusive jurisdiction of the federal courts, production credit associations could not enforce liens on fishing boats without access to the federal courts. To remedy this situation, Congress struck the above position. Striking the provision “will permit persons and other entities to pursue their claims against production credit associations in federal district court, if jurisdictional elements are present____” U.S.Code & Administrative News, p. 2148, 2150, 2154-55. Finally, the plaintiff argues that the Farm Credit Act was passed prior to Cort, at a time when courts frequently implied a cause of action, so Congress probably relied on that fact and saw no reason to expressly provide a remedy. This is not dispositive in light of the fact that since Cort the United States Supreme Court has denied an implied cause of action under many statutes passed prior to Cort. California v. Sierra Club, 451 U.S. at 299-300, 101 S.Ct. at 1782-83, J. Stevens, concurring. In summary, the legislative history of the Farm Credit Act does not support the intention on the part of Congress to create a private cause of action for violation of the Act. Indeed, the legislative history surrounding 12 U.S.C. § 2258 strongly suggests that Congress contemplated state law would govern most" }, { "docid": "9675688", "title": "", "text": "assure the accomplishment of the Act’s objectives,” 12 C.F.R. § 611.200 (1985); see H.R.Rep. No. 593, supra, reprinted at 2102; and the intermediate credit bank or district board is directed to adopt consistent lending policies for PCA’s, taking into consideration the “cooperative character” of the farm credit system and each institution’s “integral part” in “the statutory scheme for the whole System.” 12 C.F.R. § 611.1010(g) (1985). Each PCA is not an independent, autonomous venture entitled to operate as it pleases under the terms most favorable to its own borrowers regardless of the interests of the whole system. The goal of participation for borrowers cannot be primary to the goal of maintaining the soundness and existence of the institutions in which the borrowers wish to participate. As the district court stated, “If authorizing the credit bank to remove the [PCA] executive director conflicts with borrower control over the association, the conflict is inherent in the policy and objectives of the Farm Credit Act.” Bailey, 608 F.Supp. at 1012. Our deference to the administrative resolution of this conflict in powers is not made inappropriate, as Bailey contends, because the issue allegedly involves matters not within the agency’s area of expertise. Daley v. Farm Credit Administration, 454 F.Supp. 953 (D.Minn.1978), on which Bailey relies, involved an FCA regulation establishing an age limit of seventy for members of district boards of directors. Less deference to the agency’s decision was required, the court suggested, because age restrictions had little to do with the substantive concerns of the Farm Credit Act and because the FCA had no expertise with respect to aging. Id. at 955. The FCA bylaw concerning the removal of PCA officers, to the contrary, is integrally related to the congressional purpose of ensuring the availability of sound agricultural credit, and the FCA’s peculiar knowledge of the inner workings of the farm credit system make it well-suited to evaluate the need of the various farm credit institutions for incidental and implied powers to effectuate their enumerated powers. Having concluded that the exercise of removal power by intermediate credit banks “is not inconsistent with the" }, { "docid": "7412933", "title": "", "text": "private cause of action under the Farm Credit Act, plaintiffs’ claim under that Act must be dismissed. E. Claim for breach of fiduciary duty Defendants argue that no fiduciary relationship exists between defendants and plaintiffs, and that even if such a relationship did exist, the plaintiffs have failed to allege facts which could support a claim for breach of the relationship. We disagree. This Court is of the view that a fiduciary relationship may exist between farmers and those who implement the provisions of the Farm Credit Act. Circumstances of the particular dealings between the parties are determinative of whether such a relationship exists. The regulations governing operation of Farm Credit Associations impose high standards of honesty, integrity and professionalism on officers, employees and agents of the Farm Credit System. See, e.g., 12 C.F.R. § 612.200 et seq. See also Boyster v. Roden, 628 F.2d 1121 (8th Cir.1980). However, the fiduciary relationship, if any, between the parties in this case is not governed by the federal common law, but by state law. See Boyster v. Roden, 628 F.2d 1121 (8th Cir.1980); Birbeck v. Southern New England Production Credit Association, 606 F.Supp. 1030 (D.Conn.1985). Therefore, any claim for breach of fiduciary duty against these defendants, who are not federal defendants, exists under state law. Because we have determined that none of plaintiffs’ claims asserted under federal law are cognizable as stated, we do not have subject matter jurisdiction to entertain plaintiffs’ pendent state claims. F. Claims for fraud, misrepresentation, etc. Plaintiffs’ Complaint appears to assert claims under the various federal statutes addressed above. However, reading the Complaint with the latitude we are required to accord pro se litigants, see Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), it appears that plaintiffs may also have attempted to state claims for fraud, deceit, and/or misrepresentation. Inasmuch as their Complaint can be so construed, the claims are state claims, and must be dismissed for lack of subject matter jurisdiction. III. ACCORDINGLY, plaintiffs’ claims under 18 U.S.C. § 1341, 18 U.S.C. § 1951, 15 U.S.C. § 77q, and 12 U.S.C." }, { "docid": "9675686", "title": "", "text": "the ruse of “supervision,” to substitute its “management” decisions for the PCA’s “management” decisions, thus emasculating the PCA’s statutory power of management and control. As a semantic matter, however, the congressional declaration of objectives on which Bailey relies speaks only of borrower participation in farm credit system ownership, control, and management. Regardless of the existence or nonexistence of any removal power, borrowers participate in the farm credit system directly through their ownership of the PCA’s, id. § 2094(b), and election of PCA directors, id. § 2092, and indirectly through the PCA’s ownership of intermediate credit banks, id. § 2073(b), and election of farm credit district directors. Id. § 2223(a). PCA’s thus as a group (by district) control the selection of the persons who hold the removal power over them. Also semantically, the casual attachment of such imprecise labels as “supervisory” and “management” to various farm credit functions hardly seems sufficient to reveal — or effectuate — an alleged strict congressional determination regarding the limits of intermediate credit bank power. Use of the ordinary dictionary meanings of these terms in fact, given the other-than-ordinary relationship established by statute between PCA’s and credit banks, likely would cut back on the banks’ explicitly enumerated powers, a result hardly consistent with congressional intent. The better view is that the complete statutory structure, with its accompanying implications, defines what powers may be considered “supervisory.” Cf. Chemical Manufacturers Association v. Natural Resources Defense Council, — U.S.-, 105 S.Ct. 1102, 1108, 84 L.Ed.2d 90 (1985) (no plain meaning for the word “modify” as used in section 301(1) of the Clean Water Act). To deny the existence of a removal power would give a PCA the ability to emasculate an intermediate credit bank’s supervisory powers by making the bank unable to force a PCA to follow bank policies. The FCA — again in the congressional declaration of objectives — is charged with “furnishing sound, adequate, and constructive [farm] credit.” 12 U.S.C. § 2001(a). FCA regulations “identify areas in which Sys-temwide and district policies for the guidance of management and operations of the banks and associations are necessary to" }, { "docid": "18303190", "title": "", "text": "ENTRY NOLAND, Chief Judge. This matter is before the Court on the defendants’ motion to dismiss pursuant to Rules 12(b)(1) and (6), Fed.R.Civ.P. with attached brief in support thereof, the plaintiffs’ brief in opposition and the defendants’ reply brief. The issues have been carefully and fully briefed and are ready for disposition. The Court, being duly advised on the premises, now finds that Count IV of the complaint fails to state a claim upon which relief can be granted as no private right exists for alleged violations of Title 12 U.S.C. § 2001 et seq. and the regulations promulgated thereunder being the Farm Credit Act. Further that there is no diversity of citizenship between the parties and the Court has no subject matter jurisdiction over the pendant claims in Counts I, II and III of the complaint. Accordingly, the Court now DISMISSES the complaint without prejudice as to all counts and defendants. MEMORANDUM The action before the Court is against Scottsburg Production Credit Association and certain of its representatives, officers and board of directors (hereinafter called “PCA”) on four counts: 1) breach of agreement and implied warrant of habitability, 2) fraud in inception of a contract, 3) reliance to plaintiff’s detriment on the PCA’s misrepresentation, made knowingly of their falsity, and 4) violation of the Farm Credit Act and the regulations promulgated under it. They seek actual and punitive damages, recision of the contract, and repayment of loan payments already made. The plaintiffs, Glen Hartman and his wife, are farmers who borrowed money from the Scottsburg Production Credit Association, a federally chartered instrumentality under the Farm Credit Act, in order to buy a farm then owned by the PCA. An initial agreement provided for a Seven Hundred Thousand Dollar ($700,000.00) loan payable in twenty (20) years, and a five-year guaranteed line of credit for operation expenses. At the time of closing, however, the contract called for repayment in only ten (10) years. The line of credit was subsequently denied. Not only does the plaintiff claim breach of contract, but that the defendants violated the terms of 12 C.F.R. § 614.4110," }, { "docid": "18303862", "title": "", "text": "MEMORANDUM AND ORDER MacLAUGHLIN, District Judge. This matter is before the Court on defendant’s motion for partial summary judg ment. Also before the Court is plaintiffs appeal from the December 5, 1985 order of the United States Magistrate. The Court will affirm the Magistrate’s order and will grant defendant’s summary judgment motion in all respects. FACTS Plaintiff James M. Corum was formerly employed by defendant Farm Credit Services (FCS). Defendant states that FCS is the management organization for three banking institutions: the St. Paul Bank for Cooperatives (BC), the Federal Land Bank of St. Paul (FLB), and the Federal Intermediate Credit Bank of St. Paul (FICB). (The Court will refer to these three entities collectively as “the Banks.”) Plaintiff responds that the FCS is not a “management organization” for the Banks, rather plaintiff maintains that the Banks have chosen to do business as the FCS. Accordingly, plaintiff has styled his action Corum v. FCS d/b/a BC, FLB, and FICB. The Banks are lending institutions federally chartered under the Farm Credit Act, 12 U.S.C. §§ 2001-2260. The Farm Credit Act established the Federal Credit System, and the Banks are a part of that system. The purpose of the system is to improve the income and well-being of farmers and ranchers by providing credit. See 12 U.S.C. § 2001(a). In 1968, plaintiff was a trial attorney at the St. Paul law firm of Altman, Gerahty, Leonard & Mullally. Corum ¶ 2. During that year, the president of the FICB, Andrew Lampen, approached plaintiff regarding legal employment at the FICB. While plaintiff was negotiating with Lampen regarding the position with FICB, Lampen repeatedly told plaintiff that plaintiff would not get rich working for the FICB, but plaintiff would have “job security” and a company car. Corum 68; 113. When plaintiff started his employment with FICB in 1968, he was the only attorney on the staff. Plaintiff’s title at this time was senior attorney, but he states he was performing the functions of a general counsel. Corum 314-15. In 1969, plaintiff’s title changed to General Counsel. In 1971, the FICB added the corporate office" }, { "docid": "18303201", "title": "", "text": "the above position. Striking the provision “will permit persons and other entities to pursue their claims against production credit associations in federal district court, if jurisdictional elements are present____” U.S.Code & Administrative News, p. 2148, 2150, 2154-55. Finally, the plaintiff argues that the Farm Credit Act was passed prior to Cort, at a time when courts frequently implied a cause of action, so Congress probably relied on that fact and saw no reason to expressly provide a remedy. This is not dispositive in light of the fact that since Cort the United States Supreme Court has denied an implied cause of action under many statutes passed prior to Cort. California v. Sierra Club, 451 U.S. at 299-300, 101 S.Ct. at 1782-83, J. Stevens, concurring. In summary, the legislative history of the Farm Credit Act does not support the intention on the part of Congress to create a private cause of action for violation of the Act. Indeed, the legislative history surrounding 12 U.S.C. § 2258 strongly suggests that Congress contemplated state law would govern most actions of a production credit association. III. The third consideration is whether a private cause of action is consistent with the underlying purpose of the legislative scheme. As mentioned previously, the purpose of the Farm Credit Act is to provide needed credit to farmers and ranchers. The objective is “to provide the types of credit needed by borrowers, at the lowest reasonable cost on a sound business basis ____” 12 U.S.C. § 2096(b). Authority is given to the Farm Credit Association to promulgate rules and regulations to carry out the provisions of the Act. 12 U.S.C. § 2252. There are no broad remedial purposes underlying the statute that would require a private cause of action. The Hartmans argue that the purpose of sound, adequate credit will be frustrated unless a remedy is implied. A federal remedy, however, is not necessary to protect the Hartmans’ rights, for they have an adequate remedy in state court. “Even if the fiduciary law varies from state to state, no burden to the [Farm Credit] system is perceived____” Boyster v." }, { "docid": "7412932", "title": "", "text": "may be implied from the Act. We agree. This Court agrees with the reasoning of the 11th Circuit and the 6th Circuit, in Smith v. Russellville Production Credit Association, 777 F.2d 1544 (11th Cir.1985) and Bowling v. Block, 602 F.Supp. 667 (S.D.Ohio 1985), aff'd, 785 F.2d 556 (6th Cir.1986). The statute does not provide private rights to an identifiable class, and does not explicitly prohibit certain conduct as unlawful. Most importantly, neither the Act itself nor its legislative history sufficiently support the inference of Congressional intent to create such a private cause of action. Congressional intent remains the focus of any inquiry into whether a statute creates a private remedy. Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). We can find no indication in the statute or legislative history that Congress intended for individuals to somehow enforce the goals of the Farm Credit Act through private action commenced under that Act. Other methods, both in the judicial system and without, may be available to the plaintiffs. As there is no private cause of action under the Farm Credit Act, plaintiffs’ claim under that Act must be dismissed. E. Claim for breach of fiduciary duty Defendants argue that no fiduciary relationship exists between defendants and plaintiffs, and that even if such a relationship did exist, the plaintiffs have failed to allege facts which could support a claim for breach of the relationship. We disagree. This Court is of the view that a fiduciary relationship may exist between farmers and those who implement the provisions of the Farm Credit Act. Circumstances of the particular dealings between the parties are determinative of whether such a relationship exists. The regulations governing operation of Farm Credit Associations impose high standards of honesty, integrity and professionalism on officers, employees and agents of the Farm Credit System. See, e.g., 12 C.F.R. § 612.200 et seq. See also Boyster v. Roden, 628 F.2d 1121 (8th Cir.1980). However, the fiduciary relationship, if any, between the parties in this case is not governed by the federal common law, but by state law. See Boyster v." }, { "docid": "7160913", "title": "", "text": "Land Bank of Wichita, 647 F.Supp. 1097, 1101 (D.Colo.1986); Aberdeen Production Credit Association v. Jarrett Banches, Inc., 638 F.Supp. 534, 537 (D.S.D.1986); Spring Water Dairy, Inc. v. Federal Intermediate Credit Bank of St. Paul, 625 F.Supp. 713, 719 (D.Minn.1986). The Court agrees with these cases and holds that there is no implied private right of action under the Farm Credit Act and the related regulations. None of these courts has considered whether the 1985 amendments create an implied right of action. Plaintiffs rely on the rights of applicants sections of the amendments, 12 U.S.C. §§ 2199-2208, in support of an implied cause of action. The relevant parts of these sections provide for disclosure of certain information to the borrowers and require the Farm Credit Administration to develop a policy of forbearance, a written copy of which is to be given to borrowers. The Court finds that the language of the amendments and the legislative history do not show an intent to create an implied right of action. The statute does not provide any private right of action, and the legislative history shows that an amendment to impose personal liability for damages on directors and officers of the farm credit system was rejected in committee. Mr. Glickman offered an amendment that would hold directors and officers of the System personally and individually liable for damages suffered when they knowingly violate this Act, or any rate regulation or order issued thereunder. It was pointed out that such severe penalties would discourage persons from serving as directors or officers. In addition, the bonding costs would add a considerable burden and cost to these institutions, if such bonds were to equal those or [sic] commercial-for-profit institutions. It was also pointed out that various other legal remedies already exist to address this matter. H.R.Rep. No. 425, 99th Cong., 1st Sess. 44, reprinted in 1985 U.S.Code Cong. & Admin.News 2587, 2631. As the committee report states, there are other remedies. A central part of the amendments establishes the Farm Credit Administration as an independent regulatory agency with extensive enforcement powers. Those powers include the power to" }, { "docid": "18303197", "title": "", "text": "farmer may obtain needed credit. The purpose of the Act is to improve “the income and well-being of American farmers and ranchers by furnishing sound, adequate, and constructive credit.” 12 U.S.C. § 2001(a). It is to satisfy their credit needs while encouraging farmers and ranchers to participate on the management and ownership of the system. Daley v. Farm Credit Administration, 454 F.Supp. 953, 954 (D.Minn.1978). Thus, the statute does not create any private federal remedy. Interpreting the word “benefit”, however, in a light most favorable to the plaintiff, it is arguable that the Farm Credit Act was established to “help” farmers, and, therefore, the Hartmans do fall with the class the Act was enacted to benefit. The fact that an enactment is designed to benefit a particular class does not, alone, establish an intent that the statute be enforced through private litigation. Universities Research Assn., Inc. v. Coutu, 450 U.S. 754, 771, 101 S.Ct. 1451, 1462, 67 L.Ed.2d 662 (1981). II. The key factor is whether Congress intended to create a remedy. See, Universities Research Assn., Inc. v. Coutu, supra; Transamerica Mortgage Advisors v. Lewis, supra; Touche Ross & Co. v. Redington, supra. There is nothing expressly stated in the Act’s legislative history to indicate whether Congress wished to create a remedy, or that it even considered the issue. If anything, the implication of cer tain sections is that Congress foresaw state corporation laws governing the actions of production credit associations. First, the plaintiff relies strongly on the fact that a PCA is a federal instrumentality granted power to sue and be sued. 12 U.S.C. § 2093(4). The Hartmans contend that if PCA’s can be sued, Congress must have contemplated occasions when an aggrieved farmer would be able to sue, so a federal cause of action must be implied. We decline to accept this contention. Sue and be sued clauses are included in all statutes that establish a federally chartered corporation. They merely waive governmental immunity, thereby imposing the same legal obligations and rights on a federally chartered entity as those of a private corporation. See, Mullins v. First National" }, { "docid": "9675689", "title": "", "text": "conflict in powers is not made inappropriate, as Bailey contends, because the issue allegedly involves matters not within the agency’s area of expertise. Daley v. Farm Credit Administration, 454 F.Supp. 953 (D.Minn.1978), on which Bailey relies, involved an FCA regulation establishing an age limit of seventy for members of district boards of directors. Less deference to the agency’s decision was required, the court suggested, because age restrictions had little to do with the substantive concerns of the Farm Credit Act and because the FCA had no expertise with respect to aging. Id. at 955. The FCA bylaw concerning the removal of PCA officers, to the contrary, is integrally related to the congressional purpose of ensuring the availability of sound agricultural credit, and the FCA’s peculiar knowledge of the inner workings of the farm credit system make it well-suited to evaluate the need of the various farm credit institutions for incidental and implied powers to effectuate their enumerated powers. Having concluded that the exercise of removal power by intermediate credit banks “is not inconsistent with the language, goals, or operation of the [Farm Credit] Act,” see Chemical Manufacturers, 105 S.Ct. at 1112, we must uphold the agency’s choice to give intermediate banks this power so long as the choice represents a reasonable policy decision. See Chevron, 104 S.Ct. at 2783. As stated by the district court, vesting removal power in intermediate credit banks “assures that the [PCA] chief operating officer will follow [FCA] policies”; and “[compliance with the operating policies of the FCA and the supervising credit bank is entirely consistent with Congress’ interest in providing an effectively managed, sound farm credit system.” Bailey, 608 F.Supp. at 1012. We affirm the grant of summary judgment in favor of the Bank. . The Honorable D. Brook Bártlett, United States District Judge for the Western District of Missouri. . The district court subsequently dismissed without prejudice Bailey’s pendent state claims for lack of jurisdiction, and that action is not challenged on appeal. . The Farm Credit Act has been amended since oral argument was heard in this case, Farm Credit Amendments Act of" }, { "docid": "5273178", "title": "", "text": "its officers and to change the said regulation prohibiting the sale of life insurance by officers of the Plaintiff to its borrowers in some manner so as to increase borrower participation in the management and control of the permanent system of agricultural credit made .available to institutions operating under the supervision of the Farm Credit Administration. In this connection, the Plaintiff points out and the evidence establishes that the Plaintiff Association is now entirely owned by its members; that the Government owns no stock therein and has not owned any such stock since 1955. It appears that By-Laws of Credit Associations such as the Plaintiff and regulations of the Farm Credit Administration draw no distinction between wholly owned credit associations and non-wholly owned credit associations or those in which Government money is invested through stock ownership. The problem therefore before the Court is whether under a mere declaration of policy announced by Congress as stated in 12 United States Code § 636a this Court should strike down a certain provision of Plaintiff’s By-Laws and a regulation of the Farm Credit Administration as being invalid because the Governor under said declaration of policy has not taken action (deemed desirable by the Plaintiff) to give up these measures of management and control which he has exercised in this case regarding the removal of the officer involved and the regulation prohibiting this officer from selling life insurance to borrowers of the Plaintiff. Differently said, the Plaintiff asserts that because the Governor has not taken positive action under a declaration of policy of Congress that this Court should do the same at least to the extent of declaring invalid that provision of the Plaintiff’s By-Laws and the regulation of the Farm Credit Administration upon which the removal action herein was based. This Court is without authority under a declaration of policy announced by Congress to undertake to exercise a discretionary power vested thereunder in the Governor of the Farm Credit Administration. General Motors Corp. v. District of Columbia, 380 U.S. 553, 85 S.Ct. 1156, 14 L.Ed.2d 68 (1965). To do so would, in effect," } ]

[ { "docid": "22336698", "title": "", "text": "I-130 Petition was approved. The BIA denied Anin’s appeal on March 7,1996. Anin was never informed of this adverse decision by his lawyer. In December 1996, Anin learned for the first time that his appeal to the BIA had been denied by way of a “bag and baggage” letter ordering Anin to report for deportation on February 1, 1997. Anin then went to his attorney’s office and examined his case file where he learned that the original notice of hearing had been received by his attorney. Anin then sought the assistance of new counsel. On February 20, 1997, almost two years after the in absentia deportation order was issued, Anin filed a new motion to reopen his deportation order alleging lack of notice, and for the first time, exceptional circumstances of ineffective assistance of counsel, and a denial of due process. Anin and his wife also filed affidavits which outlined his ineffective assistance of counsel claim as required by law. See Matter of Lozada, Interim Decision (BIA) 3059, 1988 WL 235454 (BIA 1988). On July 16, 1998, a majority of the BIA, with four members dissenting and two members not participating, denied the motion. The BIA held that Anin was time-barred under INA section 242B(c)(3)(A), 8 U.S.C. § 1252b(c)(3)(A) (1994), from advocating an “exceptional circumstance” exception to a denial of a motion to reopen a deportation order. The court ruled that the 180 day filing deadline was unambiguous and that even an ineffective assistance of counsel claim did not justify a statutory exemption. On August 10,1998, Anin filed a petition to this Court for review of this decision. II. This Court reviews the BIA’s denial of Anin’s motion to reopen his deportation order for abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). In this particular area, the BIA’s discretion is quite “ ‘broad.’ ” Id. (quoting INS v. Rios-Pineda, 471 U.S. 444, 449, 105 S.Ct. 2098, 85 L.Ed.2d 452 (1985)). An immigration judge may conduct a scheduled deportation hearing in absentia if an alien fails to appear at the appointed" } ]

[ { "docid": "16343760", "title": "", "text": "removal with this court. We granted a temporary stay of deportation but later vacated the stay. II. Discussion We review the BIA’s denial of a motion to reopen for abuse of discretion. INS v. Doherty, 502 U.S. 314, 324, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Gebremaria v. Ashcroft, 378 F.3d 734, 738 (8th Cir.2004). Such motions are disfavored “because of the strong public interest in bringing litigation to a close, and because ‘[granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case.’ ” Id. at 737 (quoting INS v. Abudu, 485 U.S. 94, 108, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988)). The party moving to reopen bears a heavy burden. Doherty, 502 U.S. at 323, 112 S.Ct. 719; Abudu, 485 U.S. at 110, 108 S.Ct. 904. “An abuse of discretion occurs if a decision is without rational explanation, departs from established policies, invidiously discriminates against a particular race or group, or where the agency fails to consider all factors presented by the alien or distorts important aspects of the claim.” Feleke v. INS, 118 F.3d 594, 598 (8th Cir.1997) (holding in context of an asylum claim). Hernandez-Moran argues that his first counsel, Banwo, was ineffective in not filing his petitions on time, violating his Fifth Amendment due process rights. Consequently, Hernandez-Moran contends that equitable tolling of the filing statute was appropriate, see Heideman v. PFL, Inc., 904 F.2d 1262, 1265-67 (8th Cir.1990), and the IJ abused his discretion in failing to apply equitable tolling. Hernandez-Moran also argues that he substantially complied with the requirements of Lozada and that the BIA’s assertions that he made no attempt to bring an interpreter and failed to provide his most recent address to Ban-wo are unsupported conclusions. We disagree. We believe that Hernandez-Moran’s ineffective assistance of counsel claim fails under the Lozada requirements. Lozada requires that Hernandez-Moran: (1) submit an affidavit detailing the agreement between him and Banwo; (2) show that the allegations of ineffective assistance were communicated to Banwo and that" }, { "docid": "7457098", "title": "", "text": "107, 108 S.Ct. 904. The Board’s discretion is broad: If INS discretion is to mean anything, it must be that the INS has some latitude in deciding when to reopen a case. The INS should have the right to be restrictive. Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case. It will also waste the time and efforts of immigration judges called upon to preside at hearings automatical ly required by the prima facie allegations. Abudu, 485 U.S. at 108,108 S.Ct. 904. It is the burden of the alien seeking asylum to prove that he is unable or unwilling to return to his home country either because of past persecution or a well-founded fear of future persecution based on race, religion, nationality, membership in a particular social group, or political opinion. Makhoul, 387 F.3d at 79 (citing 8 U.S.C. § 1101(a)(42)(A)). If, as here, the agent of the persecution is other than the government or government-sponsored force, the alien must show that it would not be reasonable to expect him to relocate internally to avoid the risk of persecution. 8 C.F.R. §§ 208.13(b)(2)(ii), 208.13(b)(3)(i). B. Analysis Abdullah argues that the Board erred in finding that he had not met his heavy burden to have the proceedings reopened. He points out that his motion to reopen was accompanied by stories from ten different newspapers in Pakistan. These, he contends, demonstrate that his original exhibits were credible. Abdullah insists that the Board “did not review[ ] the newly submitted exhibits” or take “any time at all to analyze the content of the stories regarding [him], his political activities, [or] the incident in the USA,” which allegedly triggered “enormous publicity and impressive volume of coverage in the Pakistan press.” He claims that the Board “blindly affirmed and adopted the decision of the judge ... based on the fact that the judge did not find him credible as to the most important part of his claim.” The Board’s order denying the motion" }, { "docid": "22400576", "title": "", "text": "of the deportation proceedings pending resolution of the second visa petition filed on his behalf. B. Onyeme also asserts that the BIA erred in declining to remand this -matter to the IJ for a continuance pending resolution of the third visa petition filed on his behalf. This visa petition, based on the second marriage between Jacobsen and Onyeme that took place on July 28, 1995, was filed on August 8, 1995, after the IJ’s June 26, 1995 deportation order but before the BIA ruled on Onyeme’s appeal from that order. We review the BIA’s decision on a motion to remand, filed during the pendency of an appeal, under the same legal standard as a motion to reopen deportation proceedings, after a deportation order becomes final. See Gutierrez-Centeno v. INS, 99 F.3d 1529, 1531 n. 3 (9th Cir.1996). With respect to a motion to reopen, the Supreme Court has held that there are three independent grounds on which the BIA may deny an alien’s motion to reopen deportation proceedings: (1) the alien has not established a prima facie ease for the underlying substantive relief sought; (2) the alien has not introduced previously unavailable, material evidence; and (3) where relief is discretionary, the alien would not be entitled to the discretionary grant of relief. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). The BIA is accorded broad discretion in ruling on a motion to reopen, and we reverse only for an abuse of discretion. See id. at 96, 108 S.Ct. 904. As set forth above, at the time Onyeme sought remand from the BIA, he had not applied for, and was statutorily ineligible for, the ultimate relief he sought — an adjustment of his status. Because he had not established a prima facie case for an adjustment of status, the BIA did not abuse its discretion in declining to remand this case for a continuance pending resolution of the third visa petition filed on Onyeme’s behalf. III. In addition to arguing that his deportation proceedings should have been continued pending resolution of the second and" }, { "docid": "13828430", "title": "", "text": "petition for review of the denial of the stay and an emergency motion to stay removal. This court denied her motion to stay and dismissed the petition for review on April 11, 2017. Trujillo Diaz was deported eight days later. On May 24, 2017, the BIA denied Trujillo Diaz’s motion to reopen her removal proceedings, finding that she had not demonstrated prima facie eligibility for asylum, withholding of removal, or protection under the Convention Against Torture. This petition for review followed. II A. Standard of Review We review the BIA’s denial of a motion to reopen immigration proceedings for abuse of discretion. Alizoti v. Gonzales, 477 F.3d 448, 451 (6th Cir. 2007). We will find an abuse of discretion if the BIA’s denial “was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Alla-bani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005) (citation omitted). In determining whether the BIA abused its discretion, we look only at “the basis articulated in the decision and [we] may not assume that the [BIA] considered factors that it failed to mention in its opinion.” Daneshvar v. Ashcroft, 355 F.3d 615, 626 (6th Cir. 2004). B. Discussion Motions to reopen immigration proceedings are generally “disfavored,” in light of the strong public interest in the finality of removal orders. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); INS v. Abudu, 485 U.S. 94, 107-08, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (“Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case.” (quoting INS v. Jong Ha Wang, 450 U.S. 139, 143 n.5, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981))). Evincing the importance of finality, both temporal and numerical limits apply to motions to reopen. See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c). Generally, a motion to reopen must be filed within ninety days of the final administrative decision. 8" }, { "docid": "11309424", "title": "", "text": "Gonzales, 447 F.3d 241, 251 (3d Cir.2006) (citation and internal quotation marks omitted). We also note at the outset that “[m]otions for reopening of immigration proceedings are disfavored,” Doherty, 502 U.S. at 323, 112 S.Ct. 719, and that “[granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case,” INS v. Abudu, 485 U.S. 94, 108, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (internal quotation marks omitted). There are three substantive grounds upon which the BIA may deny a motion to reopen immigration proceedings. First, a motion may be denied when the movant fails to establish a prima facie case for the relief sought. Id. at 104, 108 S.Ct. 904. Second, it may be denied when the movant fails to introduce previously unavailable and material evidence. Id.; see also 8 C.F.R. § 1003.2(c) (“A motion to reopen proceedings shall not be granted unless it appears to the [BIA] that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.”). Finally, when the ultimate relief sought is discretionary, as with asylum or withholding of removal, “the BIA may leap ahead, as it were, over ... threshold concerns ... and simply determine that even if they were met, the movant would not be entitled to the discretionary grant of relief.” Abudu, 485 U.S. at 105, 108 S.Ct. 904. The BIA may also deny a motion to reopen immigration proceedings on certain procedural grounds, including failure to file an accompanying application for relief. Jiang v. Holder, 639 F.3d 751, 757 (7th Cir.2011) (holding that it is within BIA’s discretion to deny a petition based on petitioner’s failure to file accompanying petition for relief); see also In re Yewondwosen, 21 I. & N. Dec. 1025, 1026 (BIA 1997) (en banc) (explaining that failure to file an accompanying petition for relief will generally result in denial of petitioner’s motion). Here, the BIA’s decision to deny Lin’s motion to reopen his immigration proceedings" }, { "docid": "16343759", "title": "", "text": "voluntary departure. Again the BIA’s order was mailed to Hernandez-Moran’s address of record. Subsequently, a “Notice to Obligor to Deliver Alien” was sent to Hernandez-Moran’s current address. Following receipt of the notice, Hernandez-Moran with new counsel, filed a motion to reopen removal proceedings and for a stay of removal. He filed the motion more than 90 days after the BIA’s final decision, arguing ineffective assistance of counsel. Hernandez-Moran alleged that he informed Banwo about his ineffective assistance claim and gave Banwo an opportunity to respond. With his motion, Hernandez-Moran submitted a letter of complaint to the state bar alleging that he and Banwo never communicated effectively because he spoke Spanish and Banwo did not. Hernandez-Moran also complained that he had no interpreter at the immigration proceedings. The BIA granted Hernandez-Moran a stay but later denied his motion to reopen removal proceedings based on ineffective assistance of counsel, under Matter of Lozada, 19 I. & N. Dec. 637, 639(BIA), aff'd, 857 F.2d 10 (1st Cir.1988). Hernandez-Moran filed a petition for review and a motion to stay removal with this court. We granted a temporary stay of deportation but later vacated the stay. II. Discussion We review the BIA’s denial of a motion to reopen for abuse of discretion. INS v. Doherty, 502 U.S. 314, 324, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Gebremaria v. Ashcroft, 378 F.3d 734, 738 (8th Cir.2004). Such motions are disfavored “because of the strong public interest in bringing litigation to a close, and because ‘[granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case.’ ” Id. at 737 (quoting INS v. Abudu, 485 U.S. 94, 108, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988)). The party moving to reopen bears a heavy burden. Doherty, 502 U.S. at 323, 112 S.Ct. 719; Abudu, 485 U.S. at 110, 108 S.Ct. 904. “An abuse of discretion occurs if a decision is without rational explanation, departs from established policies, invidiously discriminates against a particular race or group, or where the" }, { "docid": "22715376", "title": "", "text": "new asylum application, and therefore to show changed country conditions if the motion is untimely, provides one such restriction against manufacturing a case for asylum. Such a requirement also promotes the agency’s interest in finality. The Supreme Court has recognized this interest as important in the immigration context. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) (noting that “[m]otions for reopening of immigration proceedings are disfavored” because “as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States”); INS v. Abudu, 485 U.S. 94, 107-08, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (noting the “strong public interest” in finality, and endorsing the view that the INS should have the right to be restrictive in granting motions to reopen because “[granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts”). Accepting petitioners’ argument would permit aliens to file a new asylum application at any time, virtually without restriction, undermining significantly the finality of immigration proceedings. We conclude that the BIA’s interpretation of the INA and its implementing regulations are reasonable, fully consistent with the relevant statutory and regulatory provisions, and comport with sound and well-established policy considerations. We therefore affirm its holding that an alien under a final removal order must file a successive asylum application in conjunction with a motion to reopen and in accordance with those procedural requirements. We also note that we are not bound by our comment in Jian Huan Guan v. BIA, 345 F.3d 47 (2d Cir.2003) (per curiam), that such an alien may request permission to file a successive, untimely asylum application based only on changed personal circumstances, because that comment was contained in dicta. See id. at 49; see also Zheng, 509 F.3d at 872 (stating that the language in Guan was dictum); Cheng Chen, 498 F.3d at 760 (same); In re C-W-L, 24 I. & N. Dec. at 353 (same); cf. Chang Hua He v. Gonzales, 501 F.3d 1128, 1133" }, { "docid": "22670067", "title": "", "text": "petition for review is from the BIA’s denial of a motion to reopen, her burden is heavier than that of the other two petitioners who seek review from the BIA’s adverse asylum rulings on direct appeal. This is because motions to reopen are generally “disfavored,” INS v. Doherty, 502 U.S. at 323, 112 S.Ct. 719, in light of the “strong public interest” in the finality of removal orders, INS v. Abudu, 485 U.S. 94, 107-08, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (recognizing that “[g]ranting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts” (internal quotation marks omitted)). Consistent with this interest, time and number bars apply to motions to reopen. See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c). An alien such as Show Yung Guo can invoke an exception to these bars “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). Even when an alien satisfies the unavailability condition noted in this rule, however, her ability to secure reopening depends on a demonstration of prima facie eligibility for asylum, which means she must show a “realistic chance” that she will be able to obtain such relief. Poradisova v. Gonzales, 420 F.3d at 78. This requires the alien to carry the “heavy burden” of demonstrating that the proffered new evidence would likely alter the result in her case. INS v. Abudu, 485 U.S. at 110, 108 S.Ct. 904 (analogizing burden faced by alien seeking to reopen removal proceedings to that of criminal defendant moving for new trial); see Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 156-57 (2d Cir.2005) (citing In re Coelho, 20 I. & N. Dec. 464, 473 (B.I.A.1992)). We review a BIA decision to deny reopening deferentially for abuse of discretion. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146 (2d" }, { "docid": "22558599", "title": "", "text": "As a result, Lu’s claims did not establish the exceptional circumstances necessary to reopen immigration proceedings. Lu filed a timely appeal with the BIA shortly thereafter. He claimed that Judge Iskra’s decision violated his fundamental due process rights. The BIA rejected Lu’s arguments “for the reasons set forth in the Immigration Judge’s ... written decision.” Lu then filed a second habeas coi’pus petition in federal court seeking review of the BIA’s decision. The District Court transferred the petition to us. Our task, therefore, is to review the denial of Lu’s motion to reopen his immigration proceedings. II. At the time Lu filed his motion, there was no statutory provision governing the reopening of immigration proceedings. See INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 724, 116 L.Ed.2d 823 (1992) (“There is no statutory provision for reopening of a deportation proceeding.”). Instead, “the authority [to reopen derived] solely from regulations promulgated by the Attorney General .... [who had] ‘broad discretion’ to grant or deny such motions.” Id.) see also INS v. Jong Ha Wang, 450 U.S. 139, 143-45 & n. 5, 101 S.Ct. 1027, 1030-32 & n. 5, 67 L.Ed.2d 123 (1981). We have traditionally disfavored motions to reopen immigration proceedings for the same reason we disfavor “petitions for rehearing and motions for a new trial on the basis of newly discovered evidence.” Id. at 323, 112 S.Ct. 719; Katsis v. INS, 997 F.2d 1067, 1070 (3d Cir.1993). If anything, deportation proceedings are even more disfavored because “as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” Doherty, 502 U.S. at 323, 112 S.Ct. at 724-25; see also INS v. Abudu, 485 U.S. 94, 108, 108 S.Ct. 904, 913, 99 L.Ed.2d 90 (1988) (“Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case.”). Thus, we review the BIA’s decision to deny reopening for abuse of discretion, mindful of the “broad” deference that the Supreme Court" }, { "docid": "7457097", "title": "", "text": "discretion. INS v. Doherty, 502 U.S. 314, 315, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) (denial of motion to reopen reviewed for abuse of discretion regardless of the underlying basis of the alien’s request to reopen); Herbert v. Ashcroft, 325 F.3d 68, 70 (1st Cir.2003). The Attorney General has discretion to determine whether to reopen or reconsider a case. INS v. Abudu, 485 U.S. 94, 108, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Our review is highly deferential, focusing on the rationality of the decision to deny reconsideration and reopening, not on the merits per se, of the underlying claim. The Board’s decision “will be upheld unless it is arbitrary, irrational, or contrary to law.” Ahwazi v. INS, 751 F.2d 1120, 1122 (9th Cir.1985). A motion to reopen must be based upon new material evidence that was not available and which the alien could not have presented at the prior hearing. Doherty, 502 U.S. at 323, 112 S.Ct. 719. There is a “strong public interest in bringing litigation to a close.” Abudu, 485 U.S. at 107, 108 S.Ct. 904. The Board’s discretion is broad: If INS discretion is to mean anything, it must be that the INS has some latitude in deciding when to reopen a case. The INS should have the right to be restrictive. Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case. It will also waste the time and efforts of immigration judges called upon to preside at hearings automatical ly required by the prima facie allegations. Abudu, 485 U.S. at 108,108 S.Ct. 904. It is the burden of the alien seeking asylum to prove that he is unable or unwilling to return to his home country either because of past persecution or a well-founded fear of future persecution based on race, religion, nationality, membership in a particular social group, or political opinion. Makhoul, 387 F.3d at 79 (citing 8 U.S.C. § 1101(a)(42)(A)). If, as here, the agent of the persecution is other than the" }, { "docid": "13828431", "title": "", "text": "basis articulated in the decision and [we] may not assume that the [BIA] considered factors that it failed to mention in its opinion.” Daneshvar v. Ashcroft, 355 F.3d 615, 626 (6th Cir. 2004). B. Discussion Motions to reopen immigration proceedings are generally “disfavored,” in light of the strong public interest in the finality of removal orders. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); INS v. Abudu, 485 U.S. 94, 107-08, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (“Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case.” (quoting INS v. Jong Ha Wang, 450 U.S. 139, 143 n.5, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981))). Evincing the importance of finality, both temporal and numerical limits apply to motions to reopen. See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c). Generally, a motion to reopen must be filed within ninety days of the final administrative decision. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is an exception to these temporal and numerical limits, however, for motions “based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material.and was not available and would not have been discovered or presented at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3); Alizoti, 477 F.3d at 451-52; Haddad v. Gonzales, 437 F.3d 515, 517-18 (6th Cir. 2006). Trujillo Diaz filed her motion to reopen under this “changed country conditions” exception. The Supreme Court has identified “at least three independent grounds on which the BIA might deny a motion to reopen—failure to establish a prima facie case for the relief sought, failure to introduce previously unavailable, material evidence, and a determination that even if these requirements were satisfied, the movant would not be entitled to the discretionary grant of relief which he sought.” Zhang v. Mukasey, 543 F.3d 851, 854 (6th Cir. 2008) (quoting Doherty, 502 U.S. at 323, 112" }, { "docid": "22750853", "title": "", "text": "the BIA may determine, either as a sufficient ground for denying relief or as a necessary step toward granting relief, whether the alien has produced previously unavailable, material evidence (§3.2), and, in asylum cases, whether the alien has reasonably explained his or her failure to request asylum initially (§208.11). We hold today that such decisions are subject to an abuse-of-discretion standard of review. The reasons why motions to reopen are disfavored in deportation proceedings are comparable to those that apply to petitions for rehearing, and to motions for new trials on the basis of newly discovered evidence. There is a strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases. The relevance of this interest to deportation proceedings was pointedly explained in an opinion that we recently quoted with approval: “If INS discretion is to mean anything, it must be that the INS has some latitude in deciding when to reopen a case. The INS should have the right to be restrictive. Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case. It will also waste the time and efforts of immigration judges called upon to preside at hearings automatically required by the prima facie allegations [, a requirement not disputed in this case].’” INS v. Jong Ha Wang, 450 U. S., at 144, n. 5 (quoting from Judge Wallace’s dissenting opinion in Villena v. INS, 622 F. 2d 1352, 1362 (CA9 1980) (en banc) (CA9 companion case to Jong Ha Wang). As we have detailed above, the Court of Appeals in this case purported to decide “whether [respondent] presented a prima facie case for reopening.” 802 F. 2d, at 1100. In so doing, the Court of Appeals set out a standard for BIA motions to reopen deportation proceedings, see supra, at 100-101, that appears to have conflated the quite separate issues whether the alien has presented a" }, { "docid": "14870260", "title": "", "text": "suggest, however, that the abuse of discretion standard applies and that the BIA has discretion to deny a motion to reopen even if the alien establishes a prima facie case of eligibility for suspension of deportation. If INS discretion is to mean anything, it must be that the INS has some latitude in deciding when to reopen a case. The INS should have the right to be restrictive. Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case. It will also waste the time and efforts of immigration judges called upon to preside at hearings automatically required by the prima facie allegations. INS v. Wang, 450 U.S. at 143 n.5, 101 S.Ct. at 1030 n.5, quoting Villena v. INS, 622 F.2d 1352, 1362 (9th Cir. 1980) (en banc) (Wallace, J., dissenting). We hold that the BIA abused its discretion in denying the motion to reopen. The BIA ignored the new evidence presented in the motion to reopen. Instead, it refused to reopen the proceedings on the ground that the Sidas previously had been given two opportunities to apply for suspension of deportation, and had failed to do so; therefore, according to the BIA, their case did not warrant any consideration. This was improper. We have recently held that although aliens have no absolute right to the discretionary relief of suspension of deportation, they are entitled to due consideration of all relevant factors which may establish extreme hardship. Santana-Figueroa v. INS, 644 F.2d 1354, 1357 (9th Cir. 1981). In Santana-Figueroa, the BIA denied an alien’s request for suspension of deportation without discussing the basis of its decision. This court reversed and remanded, stating: [WJhen allegations are specific and supported by evidentiary material, and the Board denies eligibility for relief, it must give reasons for its decisions showing that it has properly considered the circumstances. To affirm on the theory that the Board necessarily considered whatever the petitioner asserted would free the Board of the obligation to articulate a reasoned basis" }, { "docid": "14870259", "title": "", "text": "that this respiratory condition was “recently discovered” when the child traveled to Thailand to visit his grandparents. Thus the record reflects that Mrs. Sida did submit new evidence in support of her motion to reopen. Perhaps the immigration judge did not believe the new evidence was material, but there are no findings in that regard. The doctor’s letter satisfies the “other evi-dentiary material” requirement of 8 C.F.R. § 3.8. 2. Abuse of Discretion In affirming the denial of the motion to reopen, the BIA did not address the government’s claim that no new evidence had been submitted. Rather, the BIA dismissed the appeal as a matter of discretion, stating: Inasmuch as the respondents have twice failed to leave the country voluntarily and have already had an opportunity to establish eligibility for suspension of deportation, we do not believe that reopening of proceedings is warranted a second time. The Supreme Court in INS v. Wang, supra, did not explicitly identify the standard of review of a denial of a motion to reopen. The Court appeared to suggest, however, that the abuse of discretion standard applies and that the BIA has discretion to deny a motion to reopen even if the alien establishes a prima facie case of eligibility for suspension of deportation. If INS discretion is to mean anything, it must be that the INS has some latitude in deciding when to reopen a case. The INS should have the right to be restrictive. Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case. It will also waste the time and efforts of immigration judges called upon to preside at hearings automatically required by the prima facie allegations. INS v. Wang, 450 U.S. at 143 n.5, 101 S.Ct. at 1030 n.5, quoting Villena v. INS, 622 F.2d 1352, 1362 (9th Cir. 1980) (en banc) (Wallace, J., dissenting). We hold that the BIA abused its discretion in denying the motion to reopen. The BIA ignored the new evidence presented in the" }, { "docid": "22558600", "title": "", "text": "450 U.S. 139, 143-45 & n. 5, 101 S.Ct. 1027, 1030-32 & n. 5, 67 L.Ed.2d 123 (1981). We have traditionally disfavored motions to reopen immigration proceedings for the same reason we disfavor “petitions for rehearing and motions for a new trial on the basis of newly discovered evidence.” Id. at 323, 112 S.Ct. 719; Katsis v. INS, 997 F.2d 1067, 1070 (3d Cir.1993). If anything, deportation proceedings are even more disfavored because “as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” Doherty, 502 U.S. at 323, 112 S.Ct. at 724-25; see also INS v. Abudu, 485 U.S. 94, 108, 108 S.Ct. 904, 913, 99 L.Ed.2d 90 (1988) (“Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case.”). Thus, we review the BIA’s decision to deny reopening for abuse of discretion, mindful of the “broad” deference that the Supreme Court would have us afford. See Abudu, 485 U.S. at 110, 108 S.Ct. at 915 (“[T]he reasons for giving deference to agency decisions on petitions for reopening or reconsideration in other administrative contexts apply with even greater force in the INS context.”); Doherty, 502 U.S. at 323, 112 S.Ct. at 724-25 (“[T]he abuse-of-discretion standard applies to motions to reopen ‘regardless of the underlying basis of the alien’s request [for relief].’ ”). III. Lu argues that the BIA should have reopened his case because he, suffered ineffective assistance of counsel. Immigration proceedings, however, are civil, rather than criminal, in nature; therefore, the Sixth Amendment guarantee of effective counsel does not attach. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984); Scheidemann v. INS, 83 F.3d 1517, 1520 n. 4 (3d Cir.1996). Nonetheless, petitioners in deportation proceedings enjoy Fifth Amendment Due Process protections. In Lozada v. INS, 857 F.2d 10, 13-14 (1st Cir.1988), the First Circuit Court of Appeals held that ineffective assistance of counsel could constitute a denial of due" }, { "docid": "7507067", "title": "", "text": "on account of ... membership in a particular social group.” 8 U.S.C. § 1101(a)(42)(A); see INS v. Cardoza-Fonseca, 480 U.S. 421, 423, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Raffington’s written statement to the BIA expressed a fear of persecution if she returns to Jamaica because she is a single mentally ill female. Motions to reopen deportation proceedings, like petitions for rehearing and motions for new trial, are disfavored because of the strong public interest in bringing litigation to a close, and because “[glranting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case.” INS v. Abudu, 485 U.S. 94, 108, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (quotation omitted). In Abudu, the Supreme Court noted at least three independent grounds on which the BIA may deny a motion to reopen — failure to establish a prima facie case for asylum; failure to introduce previously unavailable, material evidence or failure to reasonably explain why asylum was not initially sought; or a determination that the movant would not be entitled to this discretionary relief. Each ground is reviewed under the abuse of discretion standard. Id. at 104-05, 108 S.Ct. 904; see 8 C.F.R. § 3.2(c). Here, the BIA denied the motion to reopen on the ground that Raffington failed to present a prima facie case for asylum. When a timely application for asylum has been denied, we will affirm the BIA’s decision if it is supported by substantial evidence on the agency record considered as a whole. “To overturn a finding that an alien is not eligible for asylum, the alien must meet the heavy burden of demonstrating that the evidence was so compelling that no reasonable fact-finder could fail to find the requisite fear of persecution.” Nyonzele v. INS, 83 F.3d 975, 981 (8th Cir.1996) (quotation omitted). When asylum is first sought in a motion to reopen, the Supreme Court’s unanimous decision in Abudu dictates that our review of whether the BIA abused its discretion in finding no prima facie" }, { "docid": "23229575", "title": "", "text": "orders should not apply in his case because his attorney was incompetent. On June 23, 2004, the IJ forwarded this motion to the BIA, concluding that the BIA had jurisdiction over the matter. The BIA denied Kanyi’s motion on July 9, 2004, noting that a motion to reopen removal proceedings when an order of removal is entered in absentia must be filed within 180 days of the date the removal order is entered. Kanyi’s April 28, 2004, motion to reopen was filed more than 365 days from the IJ’s February 11, 2003, in absentia removal order. The BIA concluded that Kanyi’s ineffective-assistance-of-counsel claim did not operate as an exception to the filing requirement. Kanyi timely filed a petition for review of this decision. We review the BIA’s denial of a motion to reopen removal proceedings for an abuse of discretion. INS v. Doherty, 502 U.S. 314, 322, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Gebremaria v. Ashcroft, 378 F.3d 734, 738 (8th Cir.2004). The BIA abuse’s its discretion if its decision is “without rational explanation, departs from established policies, invidiously discriminates against a particular race or group, or where the agency fails to consider all factors presented by the alien or distorts important aspects of the claim.” Feleke v. INS, 118 F.3d 594, 598 (8th Cir.1997). Motions to reopen immigration proceedings are disfavored because of the strong public interest in bringing such proceedings to a conclusion, and because freely granting such motions allows repeated delay ‘“by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a pri- ma facie case.’” Gebremaria, 378 F.3d at 737 (quoting INS v. Abudu, 485 U.S. 94, 108, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988)). When an order of removal is entered in absentia, an alien may file a motion to reopen his removal proceedings “within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i); 8 C.F.R. § 1003.23(b)(4)(ii). Exceptional circumstances are those “such as serious illness of the alien" }, { "docid": "11309423", "title": "", "text": "note any efforts to authenticate it. Lin also failed to file a new application for asylum. The BIA held that Lin did not satisfy his burden of showing prima facie eligibility for relief, and it denied his motion to reopen. In particular, it noted that there was no indication of how Lin had acquired the new documents from Chinese sources, nor had Lin made any attempt to authenticate them. The BIA’s denial was ultimately based on the totality of the circumstances, which included Lin’s failure to file a new application for asylum, his reliance on unauthenticated evidence, and the IJ’s prior adverse credibility determination. This timely petition for review followed. II. Discussion We review for abuse of discretion a decision declining to reopen removal proceedings. INS v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003). Under that standard, we give the BIA’s decision broad deference and generally do not disturb it unless it is “arbitrary, irrational, or contrary to law.” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.2006) (citation and internal quotation marks omitted). We also note at the outset that “[m]otions for reopening of immigration proceedings are disfavored,” Doherty, 502 U.S. at 323, 112 S.Ct. 719, and that “[granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case,” INS v. Abudu, 485 U.S. 94, 108, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (internal quotation marks omitted). There are three substantive grounds upon which the BIA may deny a motion to reopen immigration proceedings. First, a motion may be denied when the movant fails to establish a prima facie case for the relief sought. Id. at 104, 108 S.Ct. 904. Second, it may be denied when the movant fails to introduce previously unavailable and material evidence. Id.; see also 8 C.F.R. § 1003.2(c) (“A motion to reopen proceedings shall not be granted unless it appears to the [BIA] that evidence sought to be offered is" }, { "docid": "22317089", "title": "", "text": "& N. Dec. at 358; Asylum, and Withholding Definitions, 65 Fed.Reg. 76,588, 76,588-98 (proposed Dec. 7, 2000) (to be codified at 8 C.F.R. pt. 208). We hold that this is an improper expansion of subsection 3.2(c)(3)(ii). Azanor cites no authority for the proposition that subsection 3.2(e)(3)(ii) extends to changes in United States asylum law, and we conclude that substantial authority militates against this approach. As a general matter, exceptions to the ninety-day rule must be construed narrowly, because “[t]here is a strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases.” INS v. Abudu, 485 U.S. 94, 107, 108 S.Ct. 904, 99 L.Ed.2d 90 (1998). The INS should have the right to be restrictive. Granting [motions to reopen] too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case. It will also waste the time and efforts of immigration judges called upon to preside at hearings automatically required by the prima facie allegations .... Id. at 108, 108 S.Ct. 904, quoting Villena v. INS, 622 F.2d 1352, 1362 (9th Cir.1980) (en banc) (Wallace, J., dissenting). By expressly restricting subsection 3.2(c)(3)(ii) to motions “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered,” 8 C.F.R. § 3.2(c)(3)(ii) (emphasis added), the INS established a limited exception to the general ninety-day rule, which by its plain terms does not apply to changed circumstances in United States asylum law. See In re G-D-, 22 I. & N. Dec. 1132, 1136 (BIA 1999) (en banc) (holding that motions regulations do “not envision that[an alien] could simply remain in the United States [following a final order of deportation] and subsequently obtain a complete reexamination of his claim by virtue of an incremental legal development”). We conclude, therefore, that the Board did not abuse its discretion by holding that Azanor’s motion to reopen failed to satisfy subsection 3.2(c)(3)(ii). B." }, { "docid": "7507066", "title": "", "text": "In support of that contention, she submitted the Department of State’s 2000 Country Report on Jamaica, which described an incident in which homeless persons living on the streets of the Montego Bay business district, some reportedly suffering from mental illness, were rounded up and forcibly transported away, and a report from the Pan American Health Organization noting a limited range of mental health services available in Jamaica and a shortage of trained personnel. The BIA denied the motion to reopen because Raff-ington failed to present a prima facie case that she will persecuted upon her return to Jamaica on account of membership in a social group. On appeal, Raffington first argues that the BIA abused its discretion in denying her motion to reopen because she presented a prima facie case of eligibility for asylum. An applicant for asylum must establish that she is a “refugee,” which the relevant statute defines to include a person who “is unable or unwilling to return to” her country of origin “because of persecution or a well-founded fear of persecution on account of ... membership in a particular social group.” 8 U.S.C. § 1101(a)(42)(A); see INS v. Cardoza-Fonseca, 480 U.S. 421, 423, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Raffington’s written statement to the BIA expressed a fear of persecution if she returns to Jamaica because she is a single mentally ill female. Motions to reopen deportation proceedings, like petitions for rehearing and motions for new trial, are disfavored because of the strong public interest in bringing litigation to a close, and because “[glranting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case.” INS v. Abudu, 485 U.S. 94, 108, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (quotation omitted). In Abudu, the Supreme Court noted at least three independent grounds on which the BIA may deny a motion to reopen — failure to establish a prima facie case for asylum; failure to introduce previously unavailable, material evidence or failure to reasonably explain why asylum" } ]

[ { "docid": "460106", "title": "", "text": "DUNIWAY, Circuit Judge: Moore was charged in a three-count indictment with concealment of illegally imported narcotics and illegal sale of narcotics, violations of 21 U.S.C. § 174, and with illegal transfer of narcotics in violation of 26 U.S.C. § 4705. He was convicted on all three counts. We affirm. 1. Entrapment. Moore argues that entrapment was established as a matter of law. Had the jury chosen to accept Moore's story, it could have found entrapment. But there was also substantial evidence on the basis of which the jury could find, beyond a reasonable doubt, that while the government afforded Moore an opportunity to commit the offenses, nevertheless, Moore was not subjected by the government to “persuasion or pressure * * * which induce[d]” him to commit the offenses when he “had no predisposition to do so.” United States v. Walton, 9 Cir. 1969, 411 F.2d 283, 288. 2. The Allen instruction. Moore argues that it was error to give the so-called Allen or dynamite instruction after the jury had indicated inability to reach a unanimous verdict. On this record, the point is not available. Appellant’s counsel examined the instruction now objected to before it was read to the jury. He did not object to it; he expressly approved it. Rule 30, F.R.Crim. P. The challenged instruction is identical in every material respect to that approved by this court in Dearinger v. United States, 9 Cir., 1967, 378 F.2d 346, cert. denied 389 U.S. 885, 88 S.Ct. 156, 19 L.Ed.2d 183, and is substantially similar to those approved in Sullivan v. United States, 9 Cir., 1969, 414 F.2d 714; Christy v. United States, 9 Cir., 1959, 261 F.2d 357; and Hutson v. United States, 9 Cir., 1956, 238 F.2d 167. Moreover, the record indicates that the jury was not coerced by the instruction. The jury did not reach a verdict immediately after receiving the instruction. During its further deliberations, it asked to hear again, and did hear, the testimony of all the witnesses. Only after that did it retire for a second time and finally reach a verdict. Rather than submitting" } ]

[ { "docid": "22929414", "title": "", "text": "84 (5th Cir. 1969). In that case, a juror remained silent when polled, and other jurors by affidavit said they thought a verdict by a majority wás sufficient. The court held that there was no legal verdict. But here there was a verdict, and upon a poll of each juror in open court it was unanimous. Even if the defendants were able to prove that one juror had consistently voted “guilty with reservation”, the only purpose of such testimony would be to impeach the verdict. The meaning of “with reservation” would thus be left to the ingenuity of counsel and the vagaries of social behavior in every case. The juror answered in the affirmative when asked if “guilty” was her verdict. Many jurors have some second thoughts about their verdicts. “Beyond a reasonable doubt” need not exclude all doubt. To permit this juror to contradict this verdict by an explanation that her vote was “guilty with reservation” would sanction the impeachment of any verdict in which a jur- or could be found who was willing to repudiate the answer he gave when polled. Opportunities for harassment of jurors and jury tampering would abound. Such a burden on the jury system could not long be tolerated. B. THE “ALLEN CHARGE” The defendants also argue that the jury was coerced by the giving of the Allen charge. After 5 days of deliberations, the foreman of the jury notified the judge that “one of the members of our jury feels unable to participate in deliberations with the rest of us.” After ascertaining that the juror was not suffering from a physical or mental disability, the judge gave a modified Allen instruction substantially as set out in E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 17.18 (2d ed., 1970). (This instruction is § 18.14 in the Third Edition, 1977.) This court has consistently upheld this form of the Allen charge. Sullivan v. United States, 414 F.2d 714 (9th Cir. 1969). The cases which discuss the assumed effect of the Allen charge are all appealed by defendants who were convicted. Defendants who" }, { "docid": "891345", "title": "", "text": "substantial whereas, under the circumstances, the likelihood of the jurors being subjected to improper influences was minimal. Insofar as the record discloses, no improper communication did reach any juror during the period of separation. Counsel for appellant was apparently not concerned about the separation of jurors at the time of the trial for he neither objected to a separation nor asked for a voir dire examination of them when they returned the next morning. Finally, Sullivan contends that the trial court erred as to the form of the so-called Allen instruction given as a supplemental instruction during the course of the jury’s deliberations. Defendant does not argue that it was improper to give an Allen-type instruction at the time the trial court gave this instruction, but only that the instruction actually given was erroneous because of its failure to include certain language contained in the form of Allen instruction set out in Federal Jury Practice and Instructions, Mathes and Devitt, § 15.16, pages 165-167. The Allen instruction derives its name from Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528. The Supreme Court there held that under the circumstances of that case, the instruction given, designed to encourage a jury to reach a verdict, was not prejudicial error. The substance of the approved instruction, as set out in the Allen opinion, is quoted in the margin. An Allen instruction, even in the most acceptable form, approaches the ultimate permissible limits to which a court may go in guiding a jury towards a verdict. See United States v. Rogers, 4 Cir., 289 F.2d 433, 435. In its least objectionable form the Allen instruction has been criticized. The cases are collected in Walsh v. United States, 9 Cir., 371 F.2d 135, dissenting opinion of Judge Browning. Accordingly, variations therefrom in the direction of coercive appeal have been disapproved. See, for example, Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957. And, when found to be in acceptable form, approval has often been less than enthusiastic. The frequently expressed criticisms of the Allen instruction" }, { "docid": "15362157", "title": "", "text": "indicated that it was deadlocked. Steele also argues that the Allen charge was coercive because: (1) the district court repeated the Allen charge, as rendered supra, — when it reiterated that the court was asking the jury “to continue deliberating” — without cautionary language, and (2) the jury came back with a verdict after only half an hour of deliberation (when they returned on Monday) suggesting that one or two jurors were undecided but gave up continuing to hold out despite conscientious doubts about the government’s case. An Allen charge should be given only when it is apparent to the district court from the jury’s conduct or length of deliberation that the charge is clearly warranted. Sullivan v. United States, 414 F.2d 714, 716 (9th Cir.1969). Here, the district court was given a specific indication by the foreman that the jury had reached an impasse. The circumstances were sufficient to show that the jury was deadlocked and the Allen charge was not premature. Cf. United States v. Beattie, 613 F.2d 762, 764 (9th Cir.1980) (noting that, where a jury had not stated that it was deadlocked, an Allen charge was likely premature). However, even were we to conclude that the Allen charge was prematurely given, the jury verdict could be reversed only if the Allen charge was also coercive. See Beattie, 613 F.2d at 765. In determining whether an Allen charge is coercive, the court examines: (1) the form of the instruction, (2) the time the jury deliberated after receiving the charge in relation to the total time of deliberation and (3) any other indicia of coerciveness. United States v. Daas, 198 F.3d 1167, 1180 (9th Cir.1999). Here, the district court gave a neutral form of the Allen charge based upon the Ninth Circuit Model Criminal Jury Instruction 7.7. See Manual of Model Criminal Jury Instructions for the District Courts of the Ninth Circuit, Instruction No. 7.7 (2000). The repeated admonition to continue deliberations was part of the approved instructions and was not a new addition. That the jury deliberated longer after the Allen charge was given than before also" }, { "docid": "22906691", "title": "", "text": "your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. You are not partisans. You are judges — judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case. Because the instruction contemplated in section 5.4(a) is to be given prior to the time the jury has retired (and thus prior to the time a minority has been established to exist), and because it makes no reference to the minority but instead charges all jurors to consult with one another, the proposed instruction does not have the coercive impact of the Allen charge. See Burroughs v. United States, 365 F.2d 431 (10th Cir. 1966), recommending the practice provided for in section 5.4 (a).” Advisory Committee on the Criminal Trial, ABA Project on Mini mum Standards for Criminal Justice, Standards Relating to Trial by Jury— Tentative Draft at 146-47 (1968). The Court of Appeals for the Tenth Circuit has also suggested that the substance of the charge be included in the original instructions. United States v. Wynn, 415 F.2d 135, 137 (10th Cir. 1969), cert. denied, 397 U.S. 994, 90 S.Ct. 1133, 25 L.Ed.2d 402 (1970). We conclude that such a procedure is appropriate and not prejudicial to the rights of the defendant. Indeed, the charge given in this case in the main instruction was much less coercive than that given and approved in Hodges. The objection to such a charge raised in Fioravanti, that a court should not direct a juror to distrust his\" own judgment and reexamine his opinion in light of the majority opinion of the other jurors is not applicable here because Judge Duncan did not so instruct. The charge given is very similar to that approved by the court in Fioravanti and by the American Bar Association. We hold there" }, { "docid": "891351", "title": "", "text": "of the Mathes and Devitt instruction was not necessary in order to assure Sullivan of a fairly-balanced Allen instruction. Examination of the instruction which was given adds support to this view. While the general tenor of the instruction was that individual jurors should give due regard to the opinions of their colleagues, the jurors were not asked to surrender conscientiously held individual opinions. On the contrary, they were told, in the course of this instruction: “ * * * [it is] important and desirable that you unanimously agree upon a verdict * * * if you can do so without violence to your own individual judgments and consciences. “It is unnecessary to add that the court does not wish any juror to surrender his or her conscientious conviction. “ * * * do not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinion of other jurors or for the mere purpose of returning a verdict. ****** “Each of you must decide the case for yourself, but you should do so only after a consideration of the evidence with your fellow jurors. ****** “You are the sole and exclusive judges of the credibility of all the witnesses and of the weight and effect of all the evidence. “In the performance of this high duty you are at liberty to disregard all comments of both the court and counsel including, of course, the remarks I am now making. “Remember at all times that no juror is expected to yield a conscientious conviction he or she may have as to the weight or effect of evidence. “But remember also that after a full deliberation and consideration of all the evidence, it is your duty to agree upon a verdict if you can do so without violating your individual judgment and your conscience.” In two of the Ninth Circuit cases cited in note 4, namely Dearinger and Hutson, the Allen instructions there approved are quoted in the opinions and appear to be, in substance, about the same as the instruction under attack on this appeal." }, { "docid": "22929415", "title": "", "text": "to repudiate the answer he gave when polled. Opportunities for harassment of jurors and jury tampering would abound. Such a burden on the jury system could not long be tolerated. B. THE “ALLEN CHARGE” The defendants also argue that the jury was coerced by the giving of the Allen charge. After 5 days of deliberations, the foreman of the jury notified the judge that “one of the members of our jury feels unable to participate in deliberations with the rest of us.” After ascertaining that the juror was not suffering from a physical or mental disability, the judge gave a modified Allen instruction substantially as set out in E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 17.18 (2d ed., 1970). (This instruction is § 18.14 in the Third Edition, 1977.) This court has consistently upheld this form of the Allen charge. Sullivan v. United States, 414 F.2d 714 (9th Cir. 1969). The cases which discuss the assumed effect of the Allen charge are all appealed by defendants who were convicted. Defendants who have been acquitted after the giving of the charge have not complained. Upon review of all the circumstances of the case, we hold that the supplemental instruction was not coercive. C. PREJUDICIAL COMMUNICATIONS During the trial, the prosecutor learned that two jurors had been on an elevator during a conversation between a government attorney and a government witness. The prosecutor notified the trial judge, who called a conference in chambers with all parties to the conversation plus defense counsel. The judge determined that nothing prejudicial had been said. There was no motion for a mistrial. Defense counsel now assert that there was something sinister about the event. The record, however, reveals no reason for disturbing the trial court’s discretion in handling the matter. The same juror who had expressed her reservations in the jury room and later in a posttrial affidavit also stated in her affidavit that during the deliberations she had initiated a conversation with the bailiff by asking whether the judge expected a verdict. She said the bailiff told her that he didn’t" }, { "docid": "12015863", "title": "", "text": "to deliberate later than 6:30 P.M. that night or beyond the point of fatigue, then reread the Allen charge. The jury retired at 4:10 P.M. and the guilty verdict was returned at 5:00 P.M. Timely objections were made by defense counsel. Problems arising from the inherently coercive effect of the Allen charge have caused other courts of appeals and state courts to prohibit or to restrict severely its use. Nevertheless, the content, timing and circumstances surrounding the Allen charges given here have been upheld by this circuit and we do not now undertake to re-examine those decisions. We have, however, recognized that even in its most acceptable form, the Allen charge “approaches the ultimate permissible limits.” Sullivan v. United States, 414 F.2d 714, 716 (9th Cir. 1969). We conclude that permit ting it to be given twice in a federal prosecution would be an unwarranted expansion of its use. If the charge is to pass muster as instruction on the law there is little need to repeat it save at the jury’s request. (Here, for example, it was repeated three and one-half hours after it was first given. Nothing had intervened to cause the jury to overlook what last had been said to them.) Repetition of the charge, together with rejection of the jury’s second report of deadlock, is almost certain to convey the thought that by failing to come to an agreement — by once again reporting themselves at impasse — the jurors have acted contrary to the earlier instruction as that instruction was properly to be understood. (“Apparently you didn’t listen to what I said before, so I’ll repeat it.”) Given a second time, not at the request of the jury but at the instance of the judge, the charge no longer serves as an instruction; no matter how it may be softened it becomes a lecture sounding in reproof. Ordinarily, the general test of whether a supplemental jury instruction is in error is to consider all the circumstances to determine if the instruction was coercive. Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 13" }, { "docid": "22572024", "title": "", "text": "jury in the midst of deliberations would be recalled simply to accommodate his preference for particular wording of a supplemental instruction. Yet at this critical stage of the trial the wording may be as significant as the substance of the response. Moreover, defense counsel did note his objection to the wording of the first modified Allen charge, and, following the judge’s response to the third note, did begin to complain about that instruction as well. At that point the judge made reasonably clear that the supplemental instructions were not going to be revised. In sum, we cannot say “with fair assurance,” United States v. Schor, supra, 418 F.2d at 30, that the procedural error in the handling of the jury’s inquiries did not affect the verdict. Accordingly, we reverse and remand for a new trial. . Prior to Ronder’s trial, Gruberg pled guilty to Count 2 of the indictment, charging him with the substantive offense of filing a false corporate income tax return for the year 1973. . Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 157-58, 41 L.Ed. 528 (1896). . £. g., a juror “should never surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of other jurors or for the mere purpose of returning a verdict,” United States v. Barash, 412 F.2d 26, 31 n.9 (2d Cir.), cert. denied, 396 U.S. 832, 90 S.Ct. 86, 24 L.Ed.2d 82 (1969); no juror should violate “a conviction which he conscientiously holds predicated upon the weight and effect of the evidence,” United States v. Miller, 478 F.2d 1315, 1320 (2d Cir.), cert. denied, 414 U.S. 851, 94 S.Ct. 144, 38 L.Ed.2d 100 (1973); jurors should vote “finally according to your conscientious judgment,” United States v. Hynes, 424 F.2d 754, 756 n.2 (2d Cir.), cert. denied, 399 U.S. 933, 90 S.Ct. 2270, 26 L.Ed.2d 804 (1970); jurors should try to reach unanimity “without any juror yielding a conscientious conviction,” United States v. Rao, 394 F.2d 354, 355 (2d Cir.), cert. denied, 393 U.S. 845, 89 S.Ct. 129, 21 L.Ed.2d 116" }, { "docid": "20366566", "title": "", "text": "been consistently approved in the Ninth Circuit when it is in a form not more coercive than that in Allen. Sullivan v. United States, supra, and cases therein cited. United States v. Moore, 429 F.2d 1305 (9th Cir.1970). Counsel relies on an affidavit procured from juror VanOrsdel, who stated in substance that she was coerced by the instruction into agreeing to the verdict; and she further charged that juror Ma-lovich was mentally incompetent. If the affidavit has any truth in it, it is apparent that juror VanOrsdel ignored the instruction of the Court, the substance of which was repeated several times: “* * * [Y]ou should not surrender your honest convictions as to the weight or effect of evidence, solely because of the opinion of other jurors, or for the mere purpose of returning a verdict.” A juror may not impeach his verdict where the facts sought to be shown essentially inhere in the verdict. Bryson v. United States, 238 F.2d 657 (9th Cir.1956); Rakes v. United States, 169 F.2d 739 (4th Cir.1948). In Rakes, supra, Associate Justice Prettyman of the Court of Appeals for the District of Columbia, sitting by designation, stated: “The same rule requires that jurors are not to be harassed in any manner because of a verdict they have rendered. If jurors are conscious that they will be subjected to interrogation or searching hostile inquiry as to what occurred in the jury room and why, they are almost inescapably influenced to some extent by that anticipated annoyance. The courts will not permit that potential influence to invade the jury room. He who makes studied inquiries of jurors as to what occurred there acts at his peril, lest he be held as acting in obstruction of the administration of justice. Much of such conversation and inquiry may be idle curiosity, and harmless, but a searching or pointed examination of jurors in behalf of a party to a trial is to be emphatically condemned. It is incumbent upon the courts to protect jurors from it.” (169 F.2d at 745-746) Wright, Federal Practice & Procedure, § 554 fn. 42." }, { "docid": "20366567", "title": "", "text": "supra, Associate Justice Prettyman of the Court of Appeals for the District of Columbia, sitting by designation, stated: “The same rule requires that jurors are not to be harassed in any manner because of a verdict they have rendered. If jurors are conscious that they will be subjected to interrogation or searching hostile inquiry as to what occurred in the jury room and why, they are almost inescapably influenced to some extent by that anticipated annoyance. The courts will not permit that potential influence to invade the jury room. He who makes studied inquiries of jurors as to what occurred there acts at his peril, lest he be held as acting in obstruction of the administration of justice. Much of such conversation and inquiry may be idle curiosity, and harmless, but a searching or pointed examination of jurors in behalf of a party to a trial is to be emphatically condemned. It is incumbent upon the courts to protect jurors from it.” (169 F.2d at 745-746) Wright, Federal Practice & Procedure, § 554 fn. 42. Appellant relies on decisions from three other Circuits which apparently no longer apply the rule in Allen. We decline, as we did in Sullivan, to re-examine the rule in the present appeal. Handy was represented in this case by capable and experienced counsel who did not object to the giving- of the instruction. Rule 30 Fed.R.Crim.P. provides that no party may assign as error any portion of a charge or an omission to charge unless he objected before the jury retired. Rule 52(b) permits us to notice plain error; but we do not regard the alleged error as plain. We think it was intelligently waived. Ill Misconduct of the Jury The affidavit of juror VanOrsdel, filed more than a month after the trial, not only stated that she was coerced by the Allen charge, to return a verdict which she did not want to return, but she also undertook to detail the secret deliberations in the jury room and the conduct and statements of fellow-jurors. She further endeavored to pass upon the sanity of a" }, { "docid": "12015862", "title": "", "text": "course of action should we now take?” The second note, received minutes later, asked that a certain witness’s testimony be read. Assuming that the second note had superseded the first, the judge had the testimony reread and then indicated to counsel his intention to give a modified Allen charge if the jury remained unable to agree. Ten minutes after resuming deliberations, the jury sent another note indicating a ten-to-two deadlock, and a modified Allen charge was given. Approximately three and one-half hours later, after some intervening discussion between judge and jury, the judge received another note from the jury which read in part: “No amount of argument has persuaded their convictions, these are the others who do not agree with the majority of the jurors. We therefore submit to you that we are at an impasse and are not likely to change our minds until fatigue becomes a deciding factor which we believe is neither fair to the defendant or the people.” The court, after stating that the jury would not in any event have to deliberate later than 6:30 P.M. that night or beyond the point of fatigue, then reread the Allen charge. The jury retired at 4:10 P.M. and the guilty verdict was returned at 5:00 P.M. Timely objections were made by defense counsel. Problems arising from the inherently coercive effect of the Allen charge have caused other courts of appeals and state courts to prohibit or to restrict severely its use. Nevertheless, the content, timing and circumstances surrounding the Allen charges given here have been upheld by this circuit and we do not now undertake to re-examine those decisions. We have, however, recognized that even in its most acceptable form, the Allen charge “approaches the ultimate permissible limits.” Sullivan v. United States, 414 F.2d 714, 716 (9th Cir. 1969). We conclude that permit ting it to be given twice in a federal prosecution would be an unwarranted expansion of its use. If the charge is to pass muster as instruction on the law there is little need to repeat it save at the jury’s request. (Here, for" }, { "docid": "20366568", "title": "", "text": "Appellant relies on decisions from three other Circuits which apparently no longer apply the rule in Allen. We decline, as we did in Sullivan, to re-examine the rule in the present appeal. Handy was represented in this case by capable and experienced counsel who did not object to the giving- of the instruction. Rule 30 Fed.R.Crim.P. provides that no party may assign as error any portion of a charge or an omission to charge unless he objected before the jury retired. Rule 52(b) permits us to notice plain error; but we do not regard the alleged error as plain. We think it was intelligently waived. Ill Misconduct of the Jury The affidavit of juror VanOrsdel, filed more than a month after the trial, not only stated that she was coerced by the Allen charge, to return a verdict which she did not want to return, but she also undertook to detail the secret deliberations in the jury room and the conduct and statements of fellow-jurors. She further endeavored to pass upon the sanity of a fellow-juror Evelyn Malovich. Relative to charges concerning the mental processes of the jurors, the Court ruled that evidence would not be allowed to impeach the verdict. As to any extraneous influences on the jurors, the Court did conduct two post-trial eviden-tiary hearings. At the first hearing five jurors were examined and cross-examined by counsel for the Government and for the defendant. At the conclusion of the hearing the Court ruled that the charges of misconduct made by juror VanOrsdel concerning her fellow-jurors had not been proven. We agree. There remains for consideration only the claim of juror VanOrsdel that juror Evelyn Malovich was mentally incompetent. The Court decided to conduct an evidentiary hearing on this subject only after the Court had examined the Juror Qualification Form which juror Malovich had filled out and signed. Juror Malovich had answered question 7 on the form as follows: “7. Do you have any physical or mental infirmity impairing your capacity to serve as a juror Yes (Yes or no) If so, describe it fully, The Court furnished a" }, { "docid": "20652599", "title": "", "text": "Allen charge or a paraphrased Allen charge, it made sure to emphasize that the jurors should not abandon their conscientious convictions or findings. Further, the Court even told the jury that it Vas “a very good group” and that the Court “really enjoy[ed] having [them].” (Tr. 1658.) Also, in speaking with the jury, at no point did the Court target the holdout or suggest that its instructions were only for that member or those members of the jury holding a minority viewpoint. At all times, the Court ensured that no pressure was placed on any juror to surrender his or her conscientious beliefs for the sake of reaching a verdict. In fact, far from being coercive, the Allen charges at issue here were “helpful” since they “only expresse[d] encouragement to the jurors to reach a verdict, if possible, to avoid the expense and delay of a new trial” and always advised the jurors not to abandon their conscientious convictions. U.S. v. Melendez, 60 F.3d 41, 41 (2d Cir.1995), vacated on other grounds by Colon v. U.S., 516 U.S. 1105, 116 S.Ct. 900, 133 L.Ed.2d 834 (1996). Indeed, the jury continued with its deliberations after receiving each Allen charge and did not immediately return a verdict. Rather, on the final day of deliberations, the Court gave the jury the third Allen charge at some point shortly after 10:30 a.m. on the final day of deliberations, and the jury did not return a verdict until 1:15 p.m. Thus, “there is no evidence here of any coercive effect ‘as is sometimes asserted to exist when a verdict follows almost immediately after the giving of the Allen charge.’ ” Crispo, 306 F.3d at 77 (quoting U.S. v. Kahaner, 317 F.2d 459, 484 (2d Cir.1963)). Further, the fact that the Court gave three modified Allen charges does not mean that any juror was coerced. Even in cases where more than one Allen charge is given, “courts in this district have found the supplemental instruction coercive where the charge is replete with coercive and intimidating language, commentary on the evidence which was biased against the defense," }, { "docid": "20366565", "title": "", "text": "record in this case indicated * * * the fact that before the court gave the Allen charge [defense counsel] was asked if he had any objection to the charge. He was given a copy of Mathes and Devitt to read. He was also made aware of the fact that the charge had come in for some fire in the Sullivan case. Then when he was asked, after he had an opportunity to read the instruction, if he had any objection to it, his answer was ‘No objection.’ ” Since neither counsel had any objection, the Court delivered the Allen charge. The jury was excused until 10:00 a.m. the following morning, when it returned its verdict. The charge which the Court gave was taken substantially from Mathes and Devi tt’s Federal Jury Practice and Instructions. The charge contained the matters omitted from the instruction criticized by this Court in Sullivan v. United States, 414 F.2d 714 (9th Cir.1969), where the conviction was nevertheless affirmed on the ground that the omissions were immaterial. The instruction has been consistently approved in the Ninth Circuit when it is in a form not more coercive than that in Allen. Sullivan v. United States, supra, and cases therein cited. United States v. Moore, 429 F.2d 1305 (9th Cir.1970). Counsel relies on an affidavit procured from juror VanOrsdel, who stated in substance that she was coerced by the instruction into agreeing to the verdict; and she further charged that juror Ma-lovich was mentally incompetent. If the affidavit has any truth in it, it is apparent that juror VanOrsdel ignored the instruction of the Court, the substance of which was repeated several times: “* * * [Y]ou should not surrender your honest convictions as to the weight or effect of evidence, solely because of the opinion of other jurors, or for the mere purpose of returning a verdict.” A juror may not impeach his verdict where the facts sought to be shown essentially inhere in the verdict. Bryson v. United States, 238 F.2d 657 (9th Cir.1956); Rakes v. United States, 169 F.2d 739 (4th Cir.1948). In Rakes," }, { "docid": "16820582", "title": "", "text": "a.m. the next morning. At 10:30 a.m., they advised the Marshal they were “having problems” deliberating. The trial judge summoned counsel to the courtroom and gave a modified form of the Allen charge. We set it out in full in Appendix A. Counsel were not informed of the judge’s intention to deliver the Allen charge, and each defense counsel objected to it after it was given. After the charge was read, the jurors were sent to lunch. They resumed deliberations at 1:00 p.m. Guilty verdicts, on all counts, were returned an hour and a half later. I The Allen charge, while productive of continued comment and debate, is nevertheless an instruction that has been accepted for many years. It must be added, however, that neither the Supreme Court nor various circuits have settled upon a precise formulation for the charge. The court in Allen did not quote the instruction it approved; it merely paraphrased the charge, omitting some portions, embellishing others. Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 157-58, 41 L.Ed. 528 (1896). The Allen Court did state that the charge it approved was taken “literally” from Commonwealth v. Tuey, 62 Mass. (8 Cush.) 1 (1851). Neither the Supreme Court nor the circuits which permit the charge insist on the Tuey formulation, nor do we. A supplemental jury charge, such as the Allen charge, can be useful in cases of apparent juror deadlock. It serves to admonish jurors to keep trying. United States v. Beattie, 613 F.2d 762, 766 (9th Cir.) (Browning, C. J., concurring), cert. denied, 446 U.S. 982, 100 S.Ct. 2962, 64 L.Ed.2d 838 (1980). It can help obdurate or recalcitrant or even puzzled jurors to adopt a reasoned conclusion. It nevertheless must be used with care and with caution. If the trial court, in its discretion, determines that the case may justify the charge, it is the better practice to include a version of it in the jury’s original instructions. See, e. g., United States v. Williams, 624 F.2d 75, 76 (9th Cir. 1980); United States v. Gugliemini, 598 F.2d 1149, 1151 (9th" }, { "docid": "11710458", "title": "", "text": "(noting that the pattern instruction given in the case “contained language which this circuit has identified as critical to any Allen charge: it directed both majority and minority jurors to reconsider their positions, and it cautioned all jurors not to surrender their personal convictions merely in order to achieve consensus by acquiescing in the majority opinion”) (citations omitted); United States v. Tines, 70 F.3d 891, 896-97 (6th Cir.1995) (holding that the use of the pattern Allen charge was not coercive because it asked both the minority and majority jurors to reconsider the views of others, and there was no charge for one side to change its mind). The conclusion to be drawn from these cases is that while the pattern instruction has typically been viewed as non-coercive, it is not the only instruction a district court may use. The cases cited above base their findings on the content of an instruction, namely, that it must address both those in the majority and those in the minority, see United States v. Harris, 391 F.2d 348, 352-53 (6th Cir.1968), and that it must remind the jury that no one should surrender honest beliefs simply because others disagree, see United States v. Scott, 547 F.2d 334, 337 (6th Cir.1977). The instruction in this case included both of the requisite elements. Indeed, the district judge reminded jurors not to surrender their convictions twice, saying: As I told you in the instructions at the close of all the evidence, you should not surrender your honest convictions as to the weight of the evidence solely because of the opinion of other jurors, or for the mere purpose of returning a verdict. That is not what I am suggesting. ... Remember at all times that no juror is expected to yield a conscientious conviction he or she may have as to the weight or effect of evidence. Although we find problematic the language challenged by the defendant— that only in the event that “many” or “several of [their] fellow jurors” are for acquittal should the “other jurors” reexamine their views—we cannot say that the instruction rises to" }, { "docid": "11710459", "title": "", "text": "(6th Cir.1968), and that it must remind the jury that no one should surrender honest beliefs simply because others disagree, see United States v. Scott, 547 F.2d 334, 337 (6th Cir.1977). The instruction in this case included both of the requisite elements. Indeed, the district judge reminded jurors not to surrender their convictions twice, saying: As I told you in the instructions at the close of all the evidence, you should not surrender your honest convictions as to the weight of the evidence solely because of the opinion of other jurors, or for the mere purpose of returning a verdict. That is not what I am suggesting. ... Remember at all times that no juror is expected to yield a conscientious conviction he or she may have as to the weight or effect of evidence. Although we find problematic the language challenged by the defendant— that only in the event that “many” or “several of [their] fellow jurors” are for acquittal should the “other jurors” reexamine their views—we cannot say that the instruction rises to the level of plain error, given that it was accompanied by the statements quoted above. Similarly, the reference to the cost of a retrial, while troubling, does not, in this case, render the charge coercive. Although other circuits have at times found that references to cost contribute to the coercive effect of a supplemental instruction, see, e.g., United States v. McElhiney, 275 F.3d 928, 945 (10th Cir.2001) (finding that instruction stressing expense of retrial contributed to coercive effect requiring reversal), we conclude that because the reference to the expense of a retrial was only one of several reasons given to encourage the jury to agree on a verdict, it did not render the charge coercive per se and cannot be said to constitute plain error. We nevertheless caution that such a comment could taint an Allen charge and counsel strongly against its inclusion. Finally, the district court’s response to the jury’s question about a partial verdict does not render the supplemental instruction plain error. Certainly, the court’s statement in this regard could have been clearer." }, { "docid": "20366564", "title": "", "text": "to stand, to assume a stance, to walk, or to make a particular gesture.” Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). See also Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Other Circuits have upheld ' such an order. United States v. Baird, 414 F.2d 700 (2d Cir.1969); United States v. Bohle, 445 F.2d 54 (7th Cir.1971); United States v. Albright, 388 F.2d 719 (4th Cir.1968); Pope v. United States, 372 F.2d 710 (8th Cir.1967). II The Allen Charge The case was submitted to the jury on Friday morning, September 25, 1970. The jury deliberated all day Friday, until 6:00 p.m., and was excused until the following Monday at 9:30 a.m. It deliberated all day Monday, until 5:15 p.m., when it reported to the Court that it was unable to reach a verdict. The Court conferred with counsel for the Government and for the defendant. The Court stated what transpired at this conference, in denying the motion for a new trial: “I think the record in this case indicated * * * the fact that before the court gave the Allen charge [defense counsel] was asked if he had any objection to the charge. He was given a copy of Mathes and Devitt to read. He was also made aware of the fact that the charge had come in for some fire in the Sullivan case. Then when he was asked, after he had an opportunity to read the instruction, if he had any objection to it, his answer was ‘No objection.’ ” Since neither counsel had any objection, the Court delivered the Allen charge. The jury was excused until 10:00 a.m. the following morning, when it returned its verdict. The charge which the Court gave was taken substantially from Mathes and Devi tt’s Federal Jury Practice and Instructions. The charge contained the matters omitted from the instruction criticized by this Court in Sullivan v. United States, 414 F.2d 714 (9th Cir.1969), where the conviction was nevertheless affirmed on the ground that the omissions were immaterial. The instruction has" }, { "docid": "16820589", "title": "", "text": "margin, a margin provided ... by the judge’s disclaimer of intention to ‘coerce’ and by his expression of willingness to accept ‘the ultimate decision,’ whatever it might be.” Id. at 784. When this element is added to the calculus, the impact of the present charge is undoubtedly greater than Allen, and thus might be deemed more coercive. Our decision, however, need not turn on this point. Here, the judge, after deviating from the charge approved in Allen, made no attempt to counterbalance his excesses by further instructing the minority not to abandon their conscientiously held views merely to secure a verdict. See Kenner, 354 F.2d at 784. Instead, he relied solely on the language of Allen, where this reminder appears only as an introductory clause to a request to examine one’s own views in light of others. Since the Allen charge already “stands at the brink of im permissible coercion,” Sea well, 550 F.2d at 1163, this was error. If cases grappling with Allen have a common thread, it is this: the integrity of individual conscience in the jury deliberation process must not be compromised. In many cases, for example, potentially coercive additions to the Allen charge have been ameliorated by independent reminders of the juror’s obligation to follow his own conscientiously held opinion. In Sullivan v. United States, 414 F.2d 714 (9th Cir. 1969), for example, we upheld the omission of certain portions of the Tuey charge because the instructions given “sufficiently reminded each of the jurors of his obligation to give ultimate controlling weight to his own conscientiously held opinion.” Id. at 718. See also Beattie, 613 F.2d at 764; Miracle, 411 F.2d at 544; Note, The Allen Charge: Recurring Problems and Recent Developments, 47 N.Y.U.L.Rev. 296, 302 (1972). Indeed, the Fourth Circuit has said that if the Allen charge “were stripped of its complementary reminder that jurors were not to acquiesce in the views of the majority or to surrender their well-founded convictions conscientiously held, it might readily be construed by the minority of the jurors as coercive . . . . ” United States v. Rodgers," }, { "docid": "23374217", "title": "", "text": "jurors, or for the mere purpose of returning a verdict. (b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals. Subparagraph (V) was not included in the American Bar Association recommended charge. . It is your duty, as jurors, to consult with one another, and to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but to do so only after an impartial consideration of the evidence in the ease with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views, and change your opinion, if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. In the prevailing opinion the argument is advanced that by allowing the delivery of this instruction Fioravanti substantially returns to the district judges the discretion to deliver a charge which it had just purportedly outlawed. I do not so read that case. In appropriate circumstances the delivery of the recommended well-balanced instruction would not have the harsh consequences implicit in an Allen-type charge. This recommended charge clearly apprises the entire panel that it should reevaluate its position with a view to reaching a decision. It is in no way aimed at the minority and defuses the dynamite of supplemental Allen-type charges. . Courts have held that Allen-type charges are coercive: if the trial judge failed to state that it was also the majority’s duty to listen to the minority, United States v. Pope, 415 F.2d 685 (8th Cir. 1969); United States v. Smith, 353 F.2d 166 (4th Cir. 1965); Mangan v. Broderick" } ]

[ { "docid": "21004131", "title": "", "text": "Corp. of Missouri and National Chemsearch Corp. of N. Y. v. Morton Fibus and Morley Chemical Co., Inc., No. 61-200 (W.D.Pa.1961). B. Consideration. The consideration flowing to Bogatin in exchange for his covenants not to compete was the full-time employment tendered him by Chemsearch, the customer lists and demonstration kits furnished him, and the specialized training and skills regarding the techniques of selling the product received by him after February 9, 1962. All of these things constituted a bargained for legal detriment since Chemsearch was not obligated to furnish them. And though not essential for legal consideration, these items were considered to be of value by Chemsearch. The fact that the employment is at will with no notice required for termination by either party does not detract from this conclusion. Ofsowitz v. Askin Stores, supra; Denny v. Roth, Tex.Civ.App., 296 S.W.2d 944 (1956). Cf. Morgan’s Home Equipment Corp. v. Martucci, supra; Light Corrugated Box Co. v. Dubison, 26 Pa.Dist. & Co.R. 169 (1936). Nor does the fact that Bogatin began training five days before the contract was signed militate against this conclusion. The understanding of the parties was that Bogatin was not to become a regular employee until he signed the restrictive covenant, and was not to receive any commissions or any customer lists or other confidential information prior to that time. Employment was not past consideration, as defendants contend, but was exchanged at the same time and directly related to the covenants made by Bogatin. Again, this was a legal detriment which plaintiff was not obligated to give prior to the execution of the agreement on February 9, 1962. See Ofsowitz v. Askin Stores, Inc., supra; Houston Credit Sales Co. v. English, Tex.Civ.App., 139 S.W.2d 163 (1940); McAnally v. Persons, Tex.Civ. App., 57 S.W.2d 945 (1933) ; Bettinger v. North Fort Worth Ice Co., Tex.Civ.App., 278 S.W. 466 (1925); Morgan’s Home Equipment Corp. v. Martucci, supra; National Chemsearch v. Fibus, supra. C. Mutuality. Defendants contend that the con-' tract lacks mutuality of obligation and' remedy. Mutuality of obligation is an old and seldom used doctrine which is. often confused" } ]

[ { "docid": "5313437", "title": "", "text": "covenant not to compete with a former employer, entered into incidental to and as a condition of employment, will be enforced only if it is reasonable — i. e. sufficiently limited as to duration and territorial scope — and if it is necessary to prevent the employee’s use or disclosure of the former employer’s trade secrets, processes or formulae, or his solicitation of, or disclosure of any information concerning the employer’s customers, or if the employee’s services can be considered “special, unique or extraordinary.” Purchasing Associates v. Weitz, 13 N.Y.2d 267, 246 N.Y.S.2d 600, 196 N.E.2d 245 (1963); Lifetime Stainless Steel Corp. v. Blalock, 33 A.D. 2d 976, 307 N.Y.S.2d 387 (App.Div. 1970); Frederick Chusid & Company v. Marshall Leeman & Co., 279 F.Supp. 913 (S.D.N.Y.1968). Beyond all doubt the covenant executed by Leamy was ancillary to and in consideration of employment. The fact that it was actually signed three days after the employment commenced is of no moment because Leamy’s application for employment stated that “employment, if offered, is contingent on” the agreement being signed. Obviously the covenant was not an afterthought but an integral condition of employment. See National Chemsearch Corp. of New York, Inc. v. Bogatin, 233 F.Supp. 802 (E.D.Pa.1964), vacated on other grounds, 349 F.2d 363 (3 Cir. 1965). We agree with the district court’s dismissal of any contention that Leamy’s services can be considered “special, unique or extraordinary” under New York law. Prior to leaving Mixco, Lea-my was the eighth in rank in a department of fifteen engineers. The evidence adduced below would warrant a conclusion that his services were not of such a character as to make his replacement impossible or even difficult, despite the fact that he had developed proficiency in the field. Purchasing Associates v. Weitz, supra; Frederick Chusid & Company v. Marshall Leeman & Co., supra. Nor is it urged on this appeal that any confidential customer lists are in any way involved. Thus, the covenant in question is valid only if it is reasonable and necessary to protect the trade secrets, processes or formulae of the former employer. The court" }, { "docid": "5313438", "title": "", "text": "signed. Obviously the covenant was not an afterthought but an integral condition of employment. See National Chemsearch Corp. of New York, Inc. v. Bogatin, 233 F.Supp. 802 (E.D.Pa.1964), vacated on other grounds, 349 F.2d 363 (3 Cir. 1965). We agree with the district court’s dismissal of any contention that Leamy’s services can be considered “special, unique or extraordinary” under New York law. Prior to leaving Mixco, Lea-my was the eighth in rank in a department of fifteen engineers. The evidence adduced below would warrant a conclusion that his services were not of such a character as to make his replacement impossible or even difficult, despite the fact that he had developed proficiency in the field. Purchasing Associates v. Weitz, supra; Frederick Chusid & Company v. Marshall Leeman & Co., supra. Nor is it urged on this appeal that any confidential customer lists are in any way involved. Thus, the covenant in question is valid only if it is reasonable and necessary to protect the trade secrets, processes or formulae of the former employer. The court below found that these requirements were met. In doing so reliance was placed on the definition of a trade secret contained in the Restatement, Torts, § 757(b) (1939), to wit, “any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. * * * It differs from other secret information in a business * * in that it is not simply information as to single or ephemeral events in the conduct of the business. * * * A trade secret is a process or device for continuous use in the operation of the business. ****** “It is not requisite that only the proprietor of the business know it. He may, without losing his protection communicate it to employees involved in its use. He may likewise communicate it to others pledged to secrecy. * * * Nevertheless, a substantial element of secrecy must exist, so that, except by the use of improper means, there" }, { "docid": "6026328", "title": "", "text": "Conflict of Laws § 187 (1971); Freedman v. Chemical Construction Corp., 43 N.Y.2d 260, 401 N.Y.S.2d 176, 179-80, 372 N.E.2d 12 (1977). But nothing turns on the question because McCaw would be enjoined under New York law as well. Under New York and New Jersey law, restrictive covenants which interfere with an individuals ability to pursue her vocation after leaving a particular employer are disfavored, although not per se unenforceable. See American Broadcasting Cos., Inc. v. Wolf, 52 N.Y.2d 394, 438 N.Y.S.2d 482, 486-87, 420 N.E.2d 363, 366-67 (1981); Purchasing Assocs., Inc. v. Weitz, 13 N.Y. 2d 267, 246 N.Y.S.2d 600, 604, 196 N.E.2d 245 (1963): Ecolab, Inc. v. K.P. Laundry Machinery, Inc., 656 F.Supp. 894, 899 (S.D.N.Y.1987); Whitmyer Bros., Inc. v. Doyle, 58 N.J. 25, 274 A.2d 577, 580-81 (1971); Solari Industries, Inc. v. Malady, 55 N.J. 571, 264 A.2d 53 (1970). The employer’s interest in protecting itself from unfair conduct is balanced against the public policies favoring uninhibited competition and disfavoring depriving an employee of her livelihood. Accordingly, restrictive employment covenants are enforced only if “necessary to protect the employer from unfair competition which stems from the employee’s use or disclosure of trade secrets or confidential customer lists,” and “reasonably limited temporally and geographically,” Columbia Ribbon & Carbon Mfg. Co., Inc. v. A-1-A Corp., 42 N.Y.2d 496, 398 N.Y.S.2d 1004, 1006, 369 N.E.2d 4 (1977), and not unduly harsh or oppressive, American Broadcasting Cos., 438 N.Y.S.2d at 486, 420 N.E.2d at 367. See also Whitmyer Bros., 274 A.2d at 581-84; Ingersoll-Rand Co. v. Ciavatta, 216 NJ.Super. 667, 524 A.2d 866 (App.Div.), certif. granted, 108 N.J. 192, 528 A.2d 18 (1987). McCaw contends that there has been no disclosure of protected trade secrets and that the non-compete covenants are accordingly not enforceable. Her argument fails. A. Trade Secrets or Confidential Customer Lists The evidence clearly shows that McCaw has converted information which Webcraft considers confidential, including the identity of Webcraft’s customers and prospects; the identity of Webcraft’s contact person at each customer or prospect; customer preferences with respect to printed products and promotions; and knowledge of Webcraft’s prices and" }, { "docid": "5313442", "title": "", "text": "contains a sheet stating that the information contained therein is confidential. This sheet is signed by the person holding the book, returned to the office and kept on file. Reference books are only distributed to those who have need of them, such as application engineers, salesmen, officers of the company and to some people in the Engineering and Research and Development Departments. Though the number of volumes in circulation is not small, it must be remembered that Mixco is a nationwide corporation, doing business through a network of independent salesmen, as well as its own employees. Some international business is also done through licensees. The record amply supports the trial court’s conclusion that the restrictive covenant was necessary to protect Mixco’s trade secrets. We further find that the covenant was sufficiently limited as to time and that the absence of a geographical limitation does not render the covenant unreasonable. See DeLong Corp. v. Lucas, 176 F.Supp. 104 (S.D.N.Y.1959), affirmed, 278 F.2d 804 (2 Cir. 1960), cert. denied, 364 U.S. 833, 81 S.Ct. 71, 5 L.Ed.2d 58 (1960). Philadelphia Gear’s first contact with Leamy came while he was still employed by Mixco. At that time Leamy indicated that he may have executed a covenant not to compete. Although Philadelphia Gear knew generally of the use of these agreements by Mixco and of their contents through prior dealings, no steps were taken to ascertain whether Leamy had, in fact, executed one. Even when Mixco, through its Executive Vice President and general counsel, contacted Philadelphia Gear concerning Leamy’s employment in January of 1970 no steps were taken to remedy the situation. This inaction is attributable to a continuing belief on the part of Philadelphia Gear’s executives that the covenants were not enforceable. Indeed, on this appeal, Philadelphia Gear has argued principally that the court below erred in sustaining the covenant’s validity. It is virtually conceded that, if the covenant was properly found to be binding, so as to prevent Leamy’s employment, Philadelphia Gear’s conduct, under the applicable Pennsylvania law, constituted an inducement to breach the covenant. United Aircraft Corp. v. Boreen, 284 F.Supp." }, { "docid": "4163268", "title": "", "text": "confidential information or information acquired at substantial expense which is not also available to the general public. Under these circumstances Reber-Friel cannot be precluded from using that same information on the theory that it is an asset of AIChE. As stated in the case of Abdallah v. Crandall, 273 App.Div. 131, 133, 76 N.Y.S.2d 403, 406 (3d Dep’t. 1948), in determining whether a customer list was a protectable asset: “A trade secret, like any other secret, is nothing more than private matter; something known to only one or a few and kept from the general public; and not susceptible to general knowledge.” AIChE’s frequent references to Reber-Friel’s important position is also unavailing. New York cases make clear that a former employee should not be penalized for having held an executive position in a company if disclosure or use of confidential information is not threatened. Reed, Roberts Assocs., Inc. v. Strauman, supra, 40 N.Y.2d 303, 386 N.Y. S.2d 677, 353 N.E.2d 590; Purchasing Asso-dates, Inc. v. Weitz, supra, 13 N.Y.2d 267, 246 N.Y.S.2d 600, 196 N.E.2d 245; Leo Silfen, Inc. v. Cream, supra, 29 N.Y.2d 387, 328 N.Y.S.2d 423, 278 N.E.2d 636; compare Bradford v. N. Y. Times Co., 501 F.2d 51 (2d Cir. 1974). AIChE’s claim that the covenant should be enforced to prevent Reber-Friel from profiting from relationships with exhibitors established while in its position as AIChE’s trade show manager is also without merit. New York courts have upheld covenants prohibiting employees from soliciting former customers to the extent necessary to protect the good will of the employer. E.g., Karpinski v. Ingrasci, 28 N.Y.2d 45, 320 N.Y.S.2d 1, 268 N.E.2d 751 (1971); Bates Chevrolet Corp. v. Haven Chevrolet, Inc., 13 A.D.2d 27, 213 N.Y.S.2d 577 (1st Dep’t 1961), aff’d, 13 N.Y.2d 644, 240 N.Y.S.2d 759, 191 N.E.2d 290 (1963). In USA Chem, Inc. v. Goldstein, 512 F.2d 163, 167 (2d Cir. 1975) this court, upholding such a covenant, quoted the reasoning of the Texas Court of Appeals in Grace v. Orkin Exterminating Co., 255 S.W.2d 279, 284 (Tex.Civ.App.1953), in further explaining the purpose of the rule: Covenants in favor" }, { "docid": "11682895", "title": "", "text": "by a sale-of-business covenant must be no “more extensive, in terms of time and space, than is reasonably necessary to the buyer for the protection of his legitimate interest in the enjoyment of the asset bought.” Purchasing Associates, Inc. v. Weitz, 13 N.Y.2d 267, 271-72, 246 N.Y.S.2d 600, 196 N.E.2d 245 (1963). An employer-employee covenant will be enforced only if it is reasonably necessary to protect the employer’s reasonable interests and “not unreason ably burdensome to the employee.” Reed, Roberts Associates, Inc. v. Strauman, 40 N.Y.2d 303, 307, 386 N.Y.S.2d 677, 353 N.E.2d 590 (1976); Greenwich Mills Co. v. Barrie House Coffee Co., 91 A.D.2d 398, 401, 459 N.Y.S.2d 454 (1983). Instead of discussing the question of reasonableness in the. context of the instant case, the district judge turned from the contractual covenant not to compete to a judicially created, or implied, covenant which restrains the seller of a company’s good will from soliciting business from his former customers. Under New York law, the purchaser of the good will of a business obtains the exclusive right “as between” himself and the seller to exploit established customer loyalty. Mohawk Maintenance Co. v. Kessler, 52 N.Y.2d 276, 286, 437 N.Y.S.2d 646, 419 N.E.2d 324 (1981). This implied covenant against the solicitation of former customers is neither limited by time nor subject to the test of reasonableness. Id. at 284-87, 437 N.Y.S.2d 646, 419 N.E.2d 324; Alexander & Alexander Services, Inc. v. Maloff, 105 A.D.2d 1066, 1067-68, 482 N.Y.S.2d 386 (1984). However, its concept of perpetual, unlimited restraint cannot be applied to one who, as here, is only a contractual convenantor and not a vendor at all. Nonetheless, referring to the implied covenant against solicitation, the district judge said: While such protection is usually afforded to the purchaser against the seller of the business, to prevent the seller “from recapturing and utilizing, by his competition, the good will of the very business which he transferred for value,” ... it is no less important in the present case. Because Gulf was justified in protecting its purchase under these circumstances, the restrictive covenant was valid" }, { "docid": "13449839", "title": "", "text": "endeavored to particularize the selling or counselling procedures alleged to have been unknown to the rest of the industry and imparted to the defendants. Trade secret relief is therefore unwarranted. Tempo Instrument, Inc. v. Logitek, Inc., 229 F.Supp. 1 (E.D.N.Y.1964). III. Solicitation of Chusid’s Employees The individual defendants who had been employed by Chusid owed a common law duty of loyalty to their employer, and this duty continued after the termination of the relationship. Duane Jones, Co. v. Burke, 306 N.Y. 172, 117 N.E.2d 237 (1954). Soliciting employees to leave their employer constitutes a breach of this good-faith duty. Duane Jones, Co. v. Burke, supra; see Universal Elec. Corp. v. Golden Shield Corp., 316 F.2d 568 (1st Cir. 1963) (applying New York law). Under New York law, injunctive relief can be obtained even though the services of the employees so solicited were not unique. See Fine v. Loew, 7 Misc.2d 245, 159 N.Y.S.2d 318 (Sup.Ct.1957); American League Baseball Club v. Pasquel, 187 Misc. 230, 63 N.Y.S.2d 537 (Sup.Ct. 1946). The fact that within three months after Leeman had been incorporated five Chusid employees transferred their allegiance to Leeman and at least two other Chusid employees discussed the possibility of working for Leeman points strongly in the direction of finding that defendants were actively soliciting Chusid’s employees. Unless temporary relief is granted, plaintiff may lose such a large part of its staff that it might be unable to continue as a viable business organization, whereas an injunction restraining defendants from soliciting or enticing Chusid’s employees to leave their employer will not preclude defendants from acting in a manner consistent with their fiduciary duties to Chusid. The balance of equities and hardships warrants the issuance of such relief. As was said in Unicon Management Corp. v. Koppers Co., 366 F.2d 199, 204-205 (2d Cir. 1966) (Lumbard, C. J.): “ ‘it will ordinarily be enough that the plaintiff [defendant here] has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation,’ where, as here, ‘the balance" }, { "docid": "13449834", "title": "", "text": "affidavit asserts that it takes many months of training before an employee is permitted to advise clients, plaintiff, with 24 offices throughout the country, had a regular training program for such personnel and it is apparent that these individuals are replaceable. In addition, it does not appear that these defendants, prior to their association with plaintiff, possessed any extraordinary skills that might make their replacement difficult or impossible, and plaintiff neither alleges nor contends that it has had any difficulty in obtaining additional people to step into the shoes of these defendants. Since it must be concluded on the facts before the Court, even when viewed most favorably toward the plaintiff, that these defendants’ services are neither unique nor extraordinary, see Carpenter & Hughes v. DeJoseph, 27 Misc.2d 1003, 213 N.Y.S.2d 856 (Sup.Ct.1960), affd., 10 N.Y.2d 925, 224 N.Y.S.2d 9, 179 N.E. 2d 854 (Ct.App.1961), the restrictive covenant, even if “reasonable”, would be enforced only to the extent necessary, to prevent their use of trade secrets or their solicitation of plaintiff’s customers. Purchasing Associates, Inc. v. Weitz, supra; Carpenter & Hughes v. DeJoseph, supra. Although Chusid’s copyright and its agreements with its employees entitle it to enjoin- their use of certain materials without regard to whether such materials are trade secret in nature (see infra, p. 917), the proof fails to demonstrate a basis for trade secret protection, since the materials were distributed by plaintiff to as many as 17,000 individuals. See Ferranti Electric, Inc. v. Harwood, 43 Misc.2d 533, 251 N.Y.S.2d 612 (Sup.Ct.1964); Minnesota Mining & Mfg. Co. v. Technical Tape Corp., 23 Misc.2d 671, 192 N.Y.S.2d 102 (Sup.Ct.1959), affd., 15 A.D.2d 960, 226 N.Y.S.2d 1021 (2d Dept.1962). Likewise there is insufficient proof of poaching of Chusid’s customers to provide a basis for enforcement of the restrictive covenants (see infra, p. 919). Accordingly, plaintiff’s motion to enforce its restrictive covenant, pendente lite, must be denied. II. Brochures, Tests, Advertising Matter, Procedures Defendants, contending that plaintiff is not entitled to injunctive relief restraining them from use of its brochures, tests, advertising matter and procedures, urge that (1) similar forms are" }, { "docid": "5313448", "title": "", "text": "does not support this contention. Covenants were signed only by people having technical knowledge, such as application engineers, and others who were capable of appreciating the technical information, such as salesmen and independent sales agents, many of whom had engineering backgrounds, and all of whom were given one or more of the reference volumes. . Metal Lubricants Co. v. Engineered Lubricants Co., 411 F.2d 426 (8 Cir. 1969 and Midland-Ross Corp. v. Yokana, 293 F.2d 411 (3 Cir. 1961) cited by appellants are-inapposite. They involve situations in which restrictive covenants had not been utilized by the former employer. . The parties are in agreement that Section 1(a) of the preliminary injunction enjoining Leamy from directly or indirectly continuing in the employ of Philadelphia Gear, Inc. has a remaining term of approximately 3% months. FREEDMAN, Circuit Judge (dissenting). I dissent from the affirmance of the preliminary injunction because: (1) contrary to the function of a preliminary injunction, it will afford Mixco all the equitable relief it might succeed in obtaining in a final decree; and (2) it is inequitable in the circumstances which surround the parties. 1. The one-year restrictive covenant has only three and one-half months to run. The trial and final decision of the case within that short time is unlikely, indeed inconceivable. Mixco, therefore, will now receive what in fact is complete and final equitable relief, but in the guise of a preliminary injunction whose main function is to preserve the status qup pendente lite. ■ 2. Even if we assume the validity of •the restrictive covenant and accept the claim that it was violated, we still must weigh what harm to Mixco will be averted by the continuance of the preliminary injunction for the short period of three and one-half months against the hardship it will impose on Leamy. What future harm to Mixco will be prevented by the preliminary injunction? The majority agrees that Leamy’s services are not “special, unique or extraordinary” under the governing New York law or of such a character as to make Leamy’s replacement unduly difficult. The majority asserts, however, that it" }, { "docid": "16352240", "title": "", "text": "are unenforceable under New York law and that, if they are enforceable, the liquidated damages clause is void as a penalty under New York law. B. The Restrictive Covenants Under New York law, the enforceability of a restrictive covenant depends in part upon the nature of the underlying contract. In Purchasing Assocs. v. Weitz, 13 N.Y.2d 267, 246 N.Y.S.2d 600, 196 N.E.2d 245 (1963), the New York Court of Appeals observed that in earlier years courts did not enforce restrictive covenants, viewing such provisions as restraints of trade. More recently, however, courts have held that in some situations it is both desirable and essential to enforce restrictive covenants. Such a covenant is enforceable, for example, in a contract for the sale of a business involving the transfer of good will as a going concern. See id. at 271, 246 N.Y.S.2d 600, 196 N.E.2d 245. Enforceability in that instance rests on the premise that “a buyer of a business should be permitted to restrict his seller’s freedom of trade so as to prevent the latter from recapturing and utilizing, by competition, the good will of the very business which he transferred for value.” Id. The Court of Appeals in Weitz identified employment contracts as a second context in which restrictive covenants may generally be enforceable. Courts will enforce a provision in an employment contract restricting the future commercial conduct of the employee if the restriction is reasonable in duration and geographic scope and if it is necessary to prevent the employee’s use or disclosure of the former employer’s trade secrets, or “his solicitation of, or disclosure of any information concerning, the other’s customers.” Id. at 272, 246 N.Y.S.2d 600, 196 N.E.2d 245; see also Columbia Ribbon & Carbon Mfg. Co., Inc. v. A-1-A Corp., 42 N.Y.2d 496, 499, 398 N.Y.S.2d 1004, 369 N.E.2d 4 (1977). Non-competition covenants usually arise in one or the other of these two contexts. See Baker’s Aid v. Hussmann Foodservice Co., 730 F.Supp. 1209, 1213 (E.D.N.Y.1990). Reasonable restrictive covenants ancillary to the sale of a business “are routinely enforced” to protect the goodwill paid for by the" }, { "docid": "11682894", "title": "", "text": "The district judge held as a matter of law that the five-year restrictive covenant was reasonable and binding and that Gulf’s customer list was a protectable trade secret. He so instructed the jury. In the district judge’s decision denying defendants’ motion to set aside the judgment, he began his explanation for this ruling with the unassailable statement of New York law that “[w]here the sale of a business includes the transfer of its good will, a reasonable covenant restricting the seller’s right to compete with the purchaser will be enforced.” The district judge did not explain, however, how this rule applied to Sturm and Roxen. Sturm and Roxen did not sell Roxen Utilities to Gulf. Their covenant did not purport to be enforceable upon the sale of a business but upon the termination of a service, which in this case occurred twenty-six years later. In this respect, the covenant is more like an employer-employee agreement than one resulting from the sale of a business. In either event, the covenant must be reasonable. The restraint imposed by a sale-of-business covenant must be no “more extensive, in terms of time and space, than is reasonably necessary to the buyer for the protection of his legitimate interest in the enjoyment of the asset bought.” Purchasing Associates, Inc. v. Weitz, 13 N.Y.2d 267, 271-72, 246 N.Y.S.2d 600, 196 N.E.2d 245 (1963). An employer-employee covenant will be enforced only if it is reasonably necessary to protect the employer’s reasonable interests and “not unreason ably burdensome to the employee.” Reed, Roberts Associates, Inc. v. Strauman, 40 N.Y.2d 303, 307, 386 N.Y.S.2d 677, 353 N.E.2d 590 (1976); Greenwich Mills Co. v. Barrie House Coffee Co., 91 A.D.2d 398, 401, 459 N.Y.S.2d 454 (1983). Instead of discussing the question of reasonableness in the. context of the instant case, the district judge turned from the contractual covenant not to compete to a judicially created, or implied, covenant which restrains the seller of a company’s good will from soliciting business from his former customers. Under New York law, the purchaser of the good will of a business obtains the exclusive" }, { "docid": "4163263", "title": "", "text": "of fiduciary duty, conversion and unfair competition based on Reber-Friel’s failure promptly to supply to AIChE all information and documents relating to its expositions and Reber-Friel’s use of that information to promote its competing Chem Pro Show. I. The Restrictive Covenant New York courts adhere to a strict approach to enforcement of restrictive covenants because their enforcement conflicts with “the general public policy favoring robust and uninhibited competition,” and “powerful considerations of public policy which militate against sanctioning the loss of a man’s livelihood.” American Broadcasting Companies, Inc. v. Wolf, 52 N.Y.2d 394, 404, 438 N.Y.S.2d 482, 487, 420 N.E.2d 363, 368 (1981) (quoting Purchasing Assocs., Inc. v. Weitz, 13 N.Y.2d 267, 272, 246 N.Y.S.2d 600, 604, 196 N.E.2d 245, 247 (1963)). Thus, a restrictive covenant will be “rigorously examined”, American Broadcasting Companies, supra, 52 N.Y.2d at 403, 438 N.Y.S.2d at 486, 420 N.E.2d 363, 367, and enforced “only to the extent necessary to protect the employer from unfair competition which stems from the employee’s use or disclosure of trade secrets or confidential customer lists,” Columbia Ribbon & Carbon Mfg. v. A-1-A Corp., 42 N.Y.2d 496, 499, 398 N.Y.S.2d 1004, 1006, 369 N.E.2d 4, 6 (1977), or “confidential customer information”, Reed, Roberts Assocs., Inc. v. Strauman, 40 N.Y.2d 303, 308, 386 N.Y.S.2d 677, 680, 353 N.E.2d 590, 593 (1976), to protect the “good will of the employer’s business, or perhaps when the employer is exposed to special harm because of the unique nature of the employee’s services.” American Broadcasting Companies, supra, 52 N.Y.2d at 403, 438 N.Y.S.2d at 486, 420 N.E.2d at 367. Only after determining that a restrictive covenant would serve to protect against such “unfair and illegal” conduct and not merely to insulate the employer from competition, does the reasonableness of the covenant in terms of its “time, space or scope,” or the oppressiveness of its operation become an issue. American Broadcasting, supra, 52 N.Y.2d at 403-04, 438 N.Y. S.2d at 486-87, 420 N.E.2d at 367-68. In the case before us we need not reach the question of the reasonableness of the scope of the covenant because legitimate" }, { "docid": "13449832", "title": "", "text": "Feren’s and Beers’ affidavits, prior to leaving Chusid’s employ these four individuals had discussed going into business together, and had decided to stagger the termination of their employment so that Chusid’s operation would not be disrupted. Maurice Shykind, a Maryland citizen, was discharged by Chusid on June 16, 1967, at which time he had been working in its Atlanta office, and commenced working for Leeman in its Washington office on September 18, 1967. Clark Slayman left plaintiff’s employ on September 18, 1967 and joined Leeman in its Atlanta office on October 23, 1967. During the middle of August 1967, Feren invited Jack Kuscher, an account executive employed in Chusid’s New York office, to lunch where the two engaged in discussions about the possibilities of Kuscher’s working with Leeman. Similar discussions concededly took place between Harold Rather, an employee in Chusid’s New York office, and Feren and Beers. In short, it appears that five of plaintiff’s employees, led by Feren and Beers, left plaintiff’s employ at approximately the same time pursuant to an understanding between at least some of them, to establish a competing business of the same type, using and plagiarizing materials and forms taken from plaintiff, seeking to induce others to leave plaintiff’s employ and join them, and causing some confusion by obtaining a telephone number for their newly established business that was almost identical to plaintiff’s number. I. Restrictive Covenants The restrictive covenants against Feren and Beers must be strictly construed and plaintiff is entitled to enforce them only if these employees’ services are “unique or extraordinary,” or relief is necessary to prevent solicitation of plaintiff’s customers or disclosure of trade secrets, processes or formulae. Purchasing Associates, Inc. v. Weitz, 13 N.Y.2d 267, 246 N.Y.S.2d 600, 196 N.E. 2d 245 (Ct.App.1963). In determining uniqueness of services, “more must * * be shown to establish such a quality than that the employee excels at his work or that his performance is of high value to his employer.” Purchasing Associates, Inc. v. Weitz, supra. Applying these principles here, Feren and Beers were account executives, i. e., salesmen. Although Frederick Chusid’s" }, { "docid": "13449833", "title": "", "text": "least some of them, to establish a competing business of the same type, using and plagiarizing materials and forms taken from plaintiff, seeking to induce others to leave plaintiff’s employ and join them, and causing some confusion by obtaining a telephone number for their newly established business that was almost identical to plaintiff’s number. I. Restrictive Covenants The restrictive covenants against Feren and Beers must be strictly construed and plaintiff is entitled to enforce them only if these employees’ services are “unique or extraordinary,” or relief is necessary to prevent solicitation of plaintiff’s customers or disclosure of trade secrets, processes or formulae. Purchasing Associates, Inc. v. Weitz, 13 N.Y.2d 267, 246 N.Y.S.2d 600, 196 N.E. 2d 245 (Ct.App.1963). In determining uniqueness of services, “more must * * be shown to establish such a quality than that the employee excels at his work or that his performance is of high value to his employer.” Purchasing Associates, Inc. v. Weitz, supra. Applying these principles here, Feren and Beers were account executives, i. e., salesmen. Although Frederick Chusid’s affidavit asserts that it takes many months of training before an employee is permitted to advise clients, plaintiff, with 24 offices throughout the country, had a regular training program for such personnel and it is apparent that these individuals are replaceable. In addition, it does not appear that these defendants, prior to their association with plaintiff, possessed any extraordinary skills that might make their replacement difficult or impossible, and plaintiff neither alleges nor contends that it has had any difficulty in obtaining additional people to step into the shoes of these defendants. Since it must be concluded on the facts before the Court, even when viewed most favorably toward the plaintiff, that these defendants’ services are neither unique nor extraordinary, see Carpenter & Hughes v. DeJoseph, 27 Misc.2d 1003, 213 N.Y.S.2d 856 (Sup.Ct.1960), affd., 10 N.Y.2d 925, 224 N.Y.S.2d 9, 179 N.E. 2d 854 (Ct.App.1961), the restrictive covenant, even if “reasonable”, would be enforced only to the extent necessary, to prevent their use of trade secrets or their solicitation of plaintiff’s customers. Purchasing Associates, Inc." }, { "docid": "5313449", "title": "", "text": "it is inequitable in the circumstances which surround the parties. 1. The one-year restrictive covenant has only three and one-half months to run. The trial and final decision of the case within that short time is unlikely, indeed inconceivable. Mixco, therefore, will now receive what in fact is complete and final equitable relief, but in the guise of a preliminary injunction whose main function is to preserve the status qup pendente lite. ■ 2. Even if we assume the validity of •the restrictive covenant and accept the claim that it was violated, we still must weigh what harm to Mixco will be averted by the continuance of the preliminary injunction for the short period of three and one-half months against the hardship it will impose on Leamy. What future harm to Mixco will be prevented by the preliminary injunction? The majority agrees that Leamy’s services are not “special, unique or extraordinary” under the governing New York law or of such a character as to make Leamy’s replacement unduly difficult. The majority asserts, however, that it is necessary to protect Mixco’s trade secrets. The label is impressive, but the content of the so-called trade secrets is obscure. As the majority points out, no special trade secret meriting protection was produced at the hearing. What the majority seeks to protect, however, are those secrets which Leamy would divulge by using his training in the performance of his work. The injunction, therefore, will forbid Leamy from working for three and one-half months in the future in order to prevent him from using his knowledge. But Leamy has already been engaged in precisely such work for the nine months of his employment with Philadelphia Gear prior to the entry of the preliminary injunction and for the additional nine months which have gone by since the preliminary injunction was stayed. The impact upon Mixco of Lea-my’s continuance in his employment for the short future period of three and one-half months is trifling when compared with the 18 months in which Leamy has already employed the same so-called trade secrets. I therefore see little, if anything," }, { "docid": "4163286", "title": "", "text": "public. . For instance, in Molina v. Barany, 56 N.Y.S.2d 124 (Sup.Ct.N.Y.Co.1945), the bad faith of the defendant was taken into consideration. And in Service System Corp. v. Harris, 41 A.D.2d 20, 341 N.Y.S.2d 702 (4th Dep’t. 1973), the defendant not only demonstrated bad faith but the court found his knowledge of trade secrets to be a factor. As stated in Clark Paper & Mfg. Co. v. Stenacher, 236 N.Y. 312, 321, 140 N.E. 708, 712 (1923): “Any unfair competition or practice may move equity to enforce a negative covenant.” . Neither were Reber-Friel’s services special, unique or extraordinary so as to justify a restrictive covenant. In Purchasing Assocs., Inc. v. Weitz, supra, 13 N.Y.2d at 274, 246 N.Y.S.2d at 605, 196 N.E.2d at 249, the court stated: More must, of course, be shown to establish such a quality than that the employee excels at his work or that his performance is of high value to his employer. It must also appear that his services are of such character as to make his replacement impossible or that the loss of such services would cause the employer irreparable injury. Clearly, Reber-Friel’s services cannot be so described. Indeed, AIChE did not consider Re-ber-Friel irreplaceable and in fact had a replacement in place at the time of termination of Reber-Friel. As noted by the New York Court of Appeals in American Broadcasting Companies, Inc. v. Wolf, supra, 52 N.Y.2d at 403 n.6, 438 N.Y.S.2d at 486, 420 N.E.2d at 367, “no New York case has been found where enforcement [of a restrictive covenant] has been granted, following termination of the employment contract, solely on the basis of the uniqueness of the services.” . In its request for information AIChE proceeded on the assumption that it is entitled to all material held by Reber-Friel relating to AIChE’s shows, irrespective of form or content. We note that this case differs from that involving an employer/employee relationship, where the employer is entitled to claim as his own that which is produced by the employee during working hours. In the case before us the duties of Reber-Friel" }, { "docid": "21995127", "title": "", "text": "Eastman Kodak Co. v. Powers Film Products, 189 App.Div. 556, 179 N.Y.S. 325 (1919); Mixing Equipment Co. v. Philadelphia Gear, Inc., 436 F.2d 1308 (3d Cir. 1971). The covenant must be reasonable both in scope and duration, and even then is enforced only when necessary to protect against use or disclosure of trade secrets or other confidential information, or solicitation of customers, or when the employee’s services are deemed unique or extraordinary. See Purchasing Associates, Inc. v. Weitz, supra, 13 N.Y.2d at 272, 246 N.Y.S.2d 600, 196 N.E.2d 245. The covenant involved in this case is reasonable at least to the extent enforcement is sought in this litigation. Its subject matter is limited to the field of plastic injection blow-molding, a process estimated to be used in the manufacture of less than 15% of plastic containers. The covenant purports to bar employment not only in the development and manufacture of plastic injection blow-molding tools and machinery but also in the distribution and sale of such items and of related services. Defendants suggest these latter areas of employment unreasonably extend the scope of the covenant. There is no occasion to decide whether enforcement could be obtained to bar employment in any area of activity other than the development and manufacture of injection blow-making tooling and machinery. Kinsley’s employment with TPT is precisely in this area, and even if the covenant could not be enforced to the full extent of all of its terms, it would be appropriate to enforce it to the extent reasonable. See Karpinski v. Ingrasci, 28 N.Y.2d 45, 320 N.Y.S.2d 1, 268 N.E.2d 751 (1971). While the geographic scope of the covenant is broad, it is not unreasonably so. Cf. DeLong Corp. v. Lucas, 176 F.Supp. 104 (S.D.N.Y.1959), aff’d, 278 F.2d 804 (2d Cir. 1960). The evidence indicates that efforts to develop a commercially acceptable plastic beverage bottle by the injection blow-molding process are being pursued in all of the areas designated in the covenant. See Gillette Co. v. Williams, 360 F.Supp. 1171 (D.Conn.1971). Nor can it seriously be maintained that the 18-month time period is unreasonable. The" }, { "docid": "5313436", "title": "", "text": "The covenant was not a separate contract. It was part and parcel of an employment agreement, entered into between a person then residing in New York and a New York corporation, relating to employment in New York state. The execution of the covenant was in consideration of and ancillary to Leamy’s employment by Mixco. Applying the choice of law rule of the forum state, Pennsylvania, it clearly appears that New York state is both the place of contracting, Crawford v. Manhattan Life Insurance Co., 208 Pa.Super. 150, 221 A.2d 877 (1966); Boase v. Lee Rubber & Tire Co., 437 F.2d 527 (3 Cir. 1970), and the “center of gravity”, the state having the most significant interest in the issue of validity and that its substantive law should be applied. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Certified Laboratories of Texas, Inc. v. Rubinson, 303 F.Supp. 1014 (E.D.Pa.1969); Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). Under New York law, a covenant not to compete with a former employer, entered into incidental to and as a condition of employment, will be enforced only if it is reasonable — i. e. sufficiently limited as to duration and territorial scope — and if it is necessary to prevent the employee’s use or disclosure of the former employer’s trade secrets, processes or formulae, or his solicitation of, or disclosure of any information concerning the employer’s customers, or if the employee’s services can be considered “special, unique or extraordinary.” Purchasing Associates v. Weitz, 13 N.Y.2d 267, 246 N.Y.S.2d 600, 196 N.E.2d 245 (1963); Lifetime Stainless Steel Corp. v. Blalock, 33 A.D. 2d 976, 307 N.Y.S.2d 387 (App.Div. 1970); Frederick Chusid & Company v. Marshall Leeman & Co., 279 F.Supp. 913 (S.D.N.Y.1968). Beyond all doubt the covenant executed by Leamy was ancillary to and in consideration of employment. The fact that it was actually signed three days after the employment commenced is of no moment because Leamy’s application for employment stated that “employment, if offered, is contingent on” the agreement being" }, { "docid": "21995126", "title": "", "text": "from disclosing trade secrets of Continental. On the hearing of the application for a preliminary injunction, only enforcement of the covenant is sought. Plaintiff has the burden of establishing both a likelihood of success on the merits and a substantial risk of irreparable injury. The parties appear to agree that the applicable law is that of New York, the place where the non-competition covenant was accepted. New York, like most jurisdictions, approaches non-competition covenants cautiously, recognizing that their enforcement interferes to some extent with an individual’s freedom to pursue his calling and with the mobility of talent within the economy. Nevertheless New York has recognized that in appropriate circumstances such covenants are enforceable, see Reed, Roberts Associates, Inc. v. Strauman, 40 N.Y.2d 303, 386 N.Y.S.2d 677, 353 N.E.2d, 590 (1976); Purchasing Associates, Inc. v. Weitz, 13 N.Y.2d 267, 246 N.Y.S.2d 600, 196 N.E.2d 245 (1963); McCall Co. v. Wright, 198 N.Y. 143, 91 N.E. 516 (1910), and both New York courts, and federal courts applying New York law, have enforced such covenants by preliminary injunction. Eastman Kodak Co. v. Powers Film Products, 189 App.Div. 556, 179 N.Y.S. 325 (1919); Mixing Equipment Co. v. Philadelphia Gear, Inc., 436 F.2d 1308 (3d Cir. 1971). The covenant must be reasonable both in scope and duration, and even then is enforced only when necessary to protect against use or disclosure of trade secrets or other confidential information, or solicitation of customers, or when the employee’s services are deemed unique or extraordinary. See Purchasing Associates, Inc. v. Weitz, supra, 13 N.Y.2d at 272, 246 N.Y.S.2d 600, 196 N.E.2d 245. The covenant involved in this case is reasonable at least to the extent enforcement is sought in this litigation. Its subject matter is limited to the field of plastic injection blow-molding, a process estimated to be used in the manufacture of less than 15% of plastic containers. The covenant purports to bar employment not only in the development and manufacture of plastic injection blow-molding tools and machinery but also in the distribution and sale of such items and of related services. Defendants suggest these latter areas" }, { "docid": "13256064", "title": "", "text": "an employee’s solicitation or disclosure of trade secrets, (2) to prevent an employee’s release of confidential information regarding the employer’s customers, or (3) in those cases where the employee’s services to the employer are deemed special or unique.” Ticor, 173 F.3d at 70 (citing Purchasing Assocs. v. Weitz, 13 N.Y.2d 267, 272-73, 246 N.Y.S.2d 600, 196 N.E.2d 245 (1963)). Batra argues that even under New York law, the Non-compete Agreement is unenforceable. First, Batra argues that the non-compete is overbroad and seeks to achieve a purpose deemed improper under New York law. Additionally, Batra claims that the agreement is unenforceable because, according to Batra, Estee Lauder has failed to establish that it can succeed on a claim for misappropriation of trade secrets, which, according to him, is required for a New York court to enforce a non-compete agreement. 1. The Agreement Does Not Seek to Achieve an Improper Purpose With respect to Batra’s first argument, Batra contends specifically that the Non-compete Agreement is being used for an impermissible purpose under New York law in that it seeks to insulate Estee Lauder from competition in contravention of New York’s policy regarding covenants not to compete. As set forth above, covenants not to compete are subjected to an overriding question of reasonableness, which takes particular account of the interests of employees. As Batra points out, the New York Court of Appeals has stated: [O]ur economy is premised on the competition engendered by the uninhibited flow of services, talent and ideas. Therefore, no restrictions should fetter an employee’s right to apply to his own best advantage the skills and knowledge acquired by the overall experience of his previous employment. Reed, Roberts Assocs., Inc. v. Strauman, 40 N.Y.2d 303, 307, 386 N.Y.S.2d 677, 680, 353 N.E.2d 590 (1976). However, the Court of Appeals also has emphasized the competing interests involved in the analysis of non-compete agreements, highlighting the importance of balancing the interests of the employee and the public with those of the employer: [T]he courts must also recognize the legitimate interest an employer has in safeguarding that which has made his business successful" } ]

[ { "docid": "22754067", "title": "", "text": "Cir.1981) (per curiam); see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1327, at 490-91 n. 18 (1969); id. § 1327, at 125 n. 18 (Supp.1984) (citing Denton Construction Co. v. Missouri Portland Cement Co. and Decker v. Massey-Ferguson, Ltd., 681 F.2d 111, 113 (2d Cir.1982)). Rule 12(b) provides that to the extent that the court decides to consider matters outside of the complaint in ruling on a motion pursuant to Rule 12(b)(6), “the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Although this provision is not applicable to motions under other rules, it is mandatory with respect to motions pursuant to Rule 12(b)(6). E.g., Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569 (1972) (per curiam) (Where “matters outside the pleadings were presented and not excluded by the court[, t]he court were therefore required by Rule 12(b) of the Federal Rules of Civil Procedure to treat the motion to dismiss as one for summary judgment and to dispose of it as provided in Rule 56.”). In the present case, in ruling on the Rule 12(b)(6) motion, the district court relied on several documents submitted by the defendants in support of their motion to dismiss. In determining that it could rely on extraneous materials, the court cited Decker v. Massey-Ferguson, Ltd. and Denton Construction Co., both of which are inapposite. In Decker, this Court merely stated that since the documents were in the record on appeal they were available for our consideration; we did not state that it would have been proper for the district court to consider them on a Rule 12(b)(6) motion without converting the motion into one for summary judgment. In Denton, the complaint had incorporated by reference the contract sued upon. The documents relied on in the present case, in contrast, had not been attached to the Complaint as exhibits; nor were they incorporated by reference into the" } ]

[ { "docid": "18874529", "title": "", "text": "attended by various defendants at the headquarters of defendant Bear, Stearns & Co. Complaint ¶ 11. On information and belief, each defendant’s costs and risks of doing business as a market-maker did not diminish as the time of the news reports about price fixing in late May, 1994; nor at the time of the news reports about the Department of Justice investigation in October 1994.... Complaint ¶ 112. The Complaint further alleges that the acts were “covert, secret and undisclosed,” and were not permitted by any act of Congress nor any rule of the SEC or the NASD. Discussion The Motion Will be Treated as a Motion to Dismiss The Court of Appeals has made clear that where a District Court is provided with materials outside the pleadings in the context of a 12(b)(6) motion to dismiss, it has two options: the court may exclude the additional materials and decide the motion on the complaint alone or convert the motion to one from summary judgment under Fed. R.Civ.P. 56 and afford all parties the opportunity to present supporting material. See Fed.R.Civ.P. 12(b). Kopec v. Coughlin, 922 F.2d 152, 154 (2d Cir.1991) (quoting Fonte v. Board of Managers of Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988). Although both sides have submitted substantial documentation in support of their positions, the Court will disregard this material and, as the parties urged at oral argument, and in their papers, treat this as a 12(b)(6) motion. Standards for Reviewing a 12(b)(6) Motion On a Rule 12(b)(6) motion to dismiss, the factual allegations of the complaint are presumed to be true and all factual inferences must be drawn in the plaintiffs favor and against the defendants. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Cosmos v. Hassett, 886 F.2d 8, 11 (2d Cir.1989); Dwyer v. Regan, 777 F.2d 825, 828-29 (2d Cir.1985). Accordingly, the factual allegations considered here and set forth below are taken from Plaintiffs’ Amended Complaint and do not constitute findings of fact by the Court. They are presumed to be true only for" }, { "docid": "443853", "title": "", "text": "F.2d 42, 47 (2d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992), citing Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir.1989); Goldman v. Belden, 754 F.2d at 1065-66. Additionally, “when a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint, the defendant may produce the [document] when attacking the complaint for its failure to state a claim.” Id. at 47, citing I. Meyer Pincus & Assoc. v. Oppenheimer & Co., Inc., 936 F.2d 759, 762 (2d Cir.1991). A plaintiffs reliance on a document eliminates the need to consider a Rule 12(b)(6) motion under Rule 56. Id at 48. The complaint references the parts and accessories information bulletins. Complaint at 15. Further, Chem-Tek relied upon these bulletins as an integral element of its claim for tortious interference with a business expectancy. The bulletins, therefore, are properly considered on the motion to dismiss. The purchase order is not referenced in the complaint. Although Chem-Tek does not dispute having notice of the purchase order, plaintiffs claims are not based solely on the written document, but also on words, conduct and other documentation. Cf. I. Meyer Pin cus & Assoc., 936 F.2d at 762 (where claims were based only on an alleged written misrepresentation appearing within the prosper-tus and not in any other source). Chem-Tek emphasizes that its agreement arose from a series of documents, oral representations and a long-established course of conduct. Chem-Tek did not rely on the purchase order in the sense required by I. Meyer Pincus & Assoc., supra and Cortee Industries, supra. Thus, the purchase order is outside the scope of review on a motion to dismiss. II. Connecticut Franchise Act Chem-Tek alleges that GM’s termination violates the Connecticut Franchise Act (“the Act”) because a franchise may not be terminated except for good cause shown and upon sixty days notice. Conn.Gen.Stat. § 42-133f(a). GM argues that the Act is inapplicable because: 1) the agreement is not a franchise as defined by the Act; and, 2) a fortuitous" }, { "docid": "16508066", "title": "", "text": "offerings. It is certain of these professional defendants which have filed the motions to dismiss that are pending before the court and subject to this ruling. STANDARDS IN DECIDING THE MOTIONS In deciding a motion to dismiss, the court must accept as true all factual allegations in the complaint and draw inferences from these allegations in the light most favorable to the plaintiffs. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1943, 118 L.Ed.2d 548 (1992). The complaint will not be dismissed “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, 102, 2 L.Ed.2d 80 (1957). The parties dispute whether the court, in deciding the motions to dismiss, may consider the PPMs which certain defendants have submitted with their motion papers. The plaintiffs argue that consideration of the PPMs would convert the motions to dismiss into motions for summary judgment. The court disagrees. In deciding a motion to dismiss, the court has discretion to consider an offering document which the plaintiffs had in their possession or had knowledge of and upon which they relied in bringing suit. See Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991) (district court may consider stock purchase agreement, offering memorandum, and warrant, on a motion to dismiss, even though these materials were not attached to the complaint), cert. denied, - U.S. -, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992); I. Meyer Pincus & Assoc. v. Oppenheimer & Co., 936 F.2d 759, 762 (2d Cir.1991) (court may consider prospectus on a motion to dismiss, even though it was not attached to the complaint); Ferber v. Travelers Corp., 802 F.Supp. 698, 702 (D.Conn.1992) (court may consider public filings and full text of documents that are integral to the plaintiffs’ claims). Furthermore, to the extent that the offering document contradicts allegations in the complaint," }, { "docid": "10706214", "title": "", "text": "a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6); (2) failure to plead fraud with particularity pursuant to Rule 9(b); and (3) dismissal of the pendent state law claims for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1). Sands filed a motion to dismiss on January 10, 2001 for (1) failure to plead fraud with particularity; (2) failure to state a claim with regard to (a) misrepresentations; (b) omissions; and (c) aider and abettor liability; and (3) failure to plead a special relationship to establish a negligent representation claim. Giant opposed the motions, which were deemed fully submitted on April 4, 2001. I. Applicable Legal Standards A. Failure to State a Claim Pursuant to Rule 12(b)(6) In reviewing a motion to dismiss under Rule 12(b)(6), review must be limited to the complaint and documents attached or incorporated by reference thereto. See Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991). Courts must “accept as true the factual allegations of the complaint, and draw all inferences in favor of the pleader.” Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993) citing IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir.1993)). Dismissal is warranted only when “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) (footnote omitted). See also Bass v. Jackson, 790 F.2d 260, 262 (2d Cir.1986). “For purposes of a motion to dismiss, [the Second Circuit has] deemed a complaint to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference ..., as well as public disclosure documents required by law to be, and that have been, filed with the SEC, and documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit.” Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir.2000) (citing Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir.1989); Kramer," }, { "docid": "8834406", "title": "", "text": "required. For the reasons that follow, the defendants’ motions are granted and the Amended Complaint is dismissed. I. On a motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6), the allegations in the complaint are accepted as true, Cohen v. Koenig, 25 F.3d 1168, 1172-73 (2d Cir.1994), and ah reasonable inferences must be made in the plaintiff’s favor. Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989). The court’s function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). Therefore, the motion should be granted only 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.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); see Goldman, 754 F.2d at 1065. The Amended Complaint in this case includes quotes from the prospectus but does not incorporate the prospectus in its entirety. Nor is the prospectus attached to the Amended Complaint as an exhibit. Nonetheless, the defendants have submitted the complete prospectus and cite it liberally in their motions to dismiss, and the plaintiff has not objected to considering the prospectus. Accordingly, the prospectus may be considered in its entirety for purposes of this motion notwithstanding the fact that it was not fully incorporated into the Amended Complaint. See San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Cos., Inc., 75 F.3d 801, 808-09 (2d Cir.1996) (dis triet court may consider full text of documents integral to the complaint even where only limited quotations included); Kramer v. Time Warner Inc., 937 F.2d 767, 773-74 (2d Cir.1991) (text of documents filed with SEC of which plaintiff had notice may be considered). Accordingly, the facts as alleged in the Amended Complaint and the relevant provisions of the prospectus are as follows. On or about October 20, 1994, the defendants commenced an $8 million initial public offering (“IPO”) of two million shares of" }, { "docid": "18465030", "title": "", "text": "April 18, 2001. Discussion I. Legal Standard for Failure to State a Claim In reviewing a motion to dismiss under Rule 12(b)(6), review must be limited to the complaint and documents attached or incorporated by reference thereto. See Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991). Courts must “accept as true the factual allegations of the complaint, and draw all inferences in favor of the pleader.” Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993) (citing IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir.1993)). Dismissal is warranted only when “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) (footnote omitted). See also Bass v. Jackson, 790 F.2d 260, 262 (2d Cir.1986). “For purposes of a motion to dismiss, [the Second Circuit has] deemed a complaint to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference ..., as well as public disclosure documents required by law to be, and that have been, filed with the SEC, and documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit.” Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir.2000) (citing Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir.1989); Kramer, 937 F.2d at 774; and Cortee Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991), cert. denied, 503 U.S. 960, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992)). Although “limited quotation does not constitute incorporation by reference,” Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir.1989) (quoting Goldman v. Belden, 754 F.2d 1059, 1066 (2d Cir.1985)), the “line between incorporating by reference and not doing so ... is fine,” Kas v. Chase Manhattan Bank, N.A., No. 90 CIV. 44(KMW), 1990 WL 113185, *4 (S.D.N.Y. July 30, 1990). In addition, courts may take judicial notice of additional facts meeting the test set forth in Federal Rule" }, { "docid": "11810744", "title": "", "text": "and to maximize their personal profit from the sale of 352,200 shares during the class period. This purported scheme allegedly unraveled in mid-July 1993. On July 15, 1993, defendant Margolis suddenly announced his resignation as a Vice Chairman and Director of Liz Claiborne. On the following day, and the final day of the class period, Claiborne announced that projected earnings per share for 1993 would be approximately 30% lower than in the prior year. Following this announcement, Claiborne stock prices fell, dramatically and newspapers began speculating about the decline in the company’s fortunes. Discussion Defendants move to dismiss the complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) and for failure to plead fraud with particularity pursuant to Fed.R.Civ.P. 9(b). In deciding a Rule 12(b)(6) motion, the Court’s function is to determine whether the complaint is legally sufficient. See Festa v. Local 3 Int’l Bhd. Of Elec. Workers, 905 F.2d 35, 37 (2d Cir.1990). A motion to dismiss must be denied “unless it appears beyond a reasonable 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). In reviewing plaintiffs’ complaint, the Court must accept as true the plaintiffs’ factual allegations, drawing all reasonable inferences in their favor. See Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir.1995). Ordinarily, a court contemplating a 12(b)(6) motion is limited to the face of the complaint and any documents appended thereto or incorporated by reference. See Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir.1989). Where a cause of action is based on fraud, however, the Court also may consider documents which form the basis of plaintiffs’ allegations if the documents are “integral to the complaint,” even if the documents have not been appended by the plaintiff. I. Meyer Pincus & Assocs., P.C. v. Oppenheimer & Co., 936 F.2d 759, 762 (2d Cir.1991). Moreover, the Court may consider public disclosure documents actually filed with the SEC and any documents that plaintiff" }, { "docid": "11810745", "title": "", "text": "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). In reviewing plaintiffs’ complaint, the Court must accept as true the plaintiffs’ factual allegations, drawing all reasonable inferences in their favor. See Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir.1995). Ordinarily, a court contemplating a 12(b)(6) motion is limited to the face of the complaint and any documents appended thereto or incorporated by reference. See Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir.1989). Where a cause of action is based on fraud, however, the Court also may consider documents which form the basis of plaintiffs’ allegations if the documents are “integral to the complaint,” even if the documents have not been appended by the plaintiff. I. Meyer Pincus & Assocs., P.C. v. Oppenheimer & Co., 936 F.2d 759, 762 (2d Cir.1991). Moreover, the Court may consider public disclosure documents actually filed with the SEC and any documents that plaintiff “had either in its possession or had knowledge of and upon which they relied in bringing suit.” Cortee Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991), cert. denied, 503 U.S. 960, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992); see also Kramer v. Time Warner Inc., 937 F.2d 767, 773-74 (2d Cir.1991). The Court may also consider press releases and press reports detailing- comments attributable to the defendants. See San Leandro Emergency Medical Group Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801, 808-09 (2d Cir.1996). “To state a cause of action under Section 10(b) and Rule 10b-5, a plaintiff must plead that the defendant made a false statement or omitted a material fact, with scienter, and that plaintiffs reliance on defendant’s action caused plaintiff injury.” Id. at 808; see also In re Time Warner Inc. Secs. Litig., 9 F.3d 259, 264 (2d Cir.1993). Defendants argue that the complaint fails to state a claim upon which relief can be granted because (1) plaintiffs have not alleged actionable false or misleading statements" }, { "docid": "22901397", "title": "", "text": "On March 12, 1996, Judge Batts dismissed N & S’s complaint in its entirety. Appellant filed timely notice of appeal on or about April 3, 1996. We review the district court’s decision de novo. Citibank, N.A. v. K-H Corp., 968 F.2d 1489, 1494 (2d Cir.1992). II Discussion Appellant asserts that the district court committed error in explicitly considering and relying upon affirmations and other evidentiary materials outside of the complaint when granting defendant’s motion to dismiss. “In considering a motion to dismiss for failure to state a claim under Fed. R.Civ.P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference.” Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991). The court is further required to view all allegations raised in the complaint in the light most favorable to the non-moving party, here N & S, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989), and “must accept as true all the factual alle-gatioris in the complaint.” Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993). In making its decision to grant Asplundh’s 12(b)(6) motion, the district court explicitly relied upon material which was not in the pleadings, specifically the Affirmation and its attachments. For example, the opinion asserts that “[t]here is no evidence of an Asplundh reply to either communication,” citing the Affirmation for that statement. Likewise, it cited the Affirmation for extra-complaint information when referring to Vanguard’s 1992 bankruptcy filing and N & S’s alleged submission to Bankruptcy Court of a “claim for attorney’s fees” from Vanguard. In short, the court improperly relied upon extra-complaint information in granting the motion to dismiss. We find that Count One of N & S’s complaint, which alleges breach of contract, is sufficiently supported by factual allegations as to withstand defendant’s Rule 12(b)(6) motion. The complaint asserts Asplundh’s purchase of Vanguard in 1990. It asserts the subsequent" }, { "docid": "22901396", "title": "", "text": "Vanguard, its wholly owned corporate subsidiary, to pay Bates’s legal fees in the criminal litigation. On April 24, 1995, Asplundh gave notice that it would move for an order under Fed.R.Civ.P. 12(b)(6) to dismiss N & S’s complaint for failure to state a claim on which relief could be granted. The motion was supported by an evidentiary affirmation (“Affirmation”) of an Asplundh executive, Phillip E. Tatoian, Jr., and Asplundh’s legal memorandum in support of the motion. The Affirmation was 16 paragraphs and attached several exhibits, including copies of correspondence to which no reference had been made in the complaint. The Affirmation detailed information including Asplundh’s account of its purchase of Vanguard and Bates’s alleged activities at Vanguard, and made mention of an attorney who allegedly represénted Bates in the criminal investigation. On or about June 8, 1995, N & S opposed the motion to dismiss. Asplundh’s reply papers were served and filed on or about June 29, 1995, and the dismissal motion was sub mitted on that day to the district court, without oral argument. On March 12, 1996, Judge Batts dismissed N & S’s complaint in its entirety. Appellant filed timely notice of appeal on or about April 3, 1996. We review the district court’s decision de novo. Citibank, N.A. v. K-H Corp., 968 F.2d 1489, 1494 (2d Cir.1992). II Discussion Appellant asserts that the district court committed error in explicitly considering and relying upon affirmations and other evidentiary materials outside of the complaint when granting defendant’s motion to dismiss. “In considering a motion to dismiss for failure to state a claim under Fed. R.Civ.P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference.” Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991). The court is further required to view all allegations raised in the complaint in the light most favorable to the non-moving party, here N & S, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Cosmas v. Hassett," }, { "docid": "1173245", "title": "", "text": "strike the extraneous, argumentative and duplicative matters they claim are contained in the first fifty-five paragraphs of the complaint. The Freddie Mac defendants move for an order to 1) dismiss all claims for equitable relief against the moving defendants; 2) dismissing claims three through eighteen; 3) granting defendants partial summary judgment on all equitable claims; 4) dismissing all claims against Tebec; 5) and striking that portion of the plaintiffs’ Second Amended Complaint incorporating by reference their First Amended and Intervening Complaints. The City moves for an order 1) dismissing the complaint in so far as it seeks equitable relief against the City; and 2) dismissing claims five, seven, thirteen and seventeen. NYCHA moves for an order 1) dismissing the common law tort claims for failure to serve a timely notice of claim on NYCHA; 2) dismissing the action for failure to state a claim; 3) dismissing the action for failure to join an indispensable party, the United States Department of Housing and Urban Development (“HUD”). B. Standard for Motions to Dismiss (Rule 12(b)(6)) On a Rule 12(b)(6) motion to dismiss, the factual allegations of the complaint are presumed to be true and all factual inferences must be drawn in the plaintiffs favor and against the defendants. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989); Dwyer v. Regan, 777 F.2d 825, 828-29 (2d Cir.1985). Accordingly, the factual allegations considered here and set forth below are taken from Plaintiffs’ Amended Complaint and do not constitute findings of fact by the Court. They are presumed to be true only for the purpose of deciding the present motions. Rule 12(b)(6) also imposes a substantial burden of proof upon the moving party. A court may not dismiss a complaint unless the movant demonstrates “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, 101-102, 2 L.Ed.2d 80 (1957). Accord Hishon v. King & Spalding, 467 U.S." }, { "docid": "443852", "title": "", "text": "of facts consistent with the allegations could be proven which entitle plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The issue is not whether the plaintiff will prevail, but whether the plaintiff should be afforded the opportunity to offer evidence to prove the claims. Id. I. The Scope of Review on a Motion to Dismiss GM argues that the Chem-Tek agreement was not a franchise, but a terminable-at-will agreement for the sale of goods. GM attached a purchase order and two “parts and accessories information bulletins” to its motion. When “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.” Fed.R.Civ.P. 12(b)(6). The parties must be given an opportunity to present all pertinent materials. Id. When a complaint attaches an exhibit, or incorporates a document by reference, however, the complaint is deemed to include such documents. Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992), citing Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir.1989); Goldman v. Belden, 754 F.2d at 1065-66. Additionally, “when a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint, the defendant may produce the [document] when attacking the complaint for its failure to state a claim.” Id. at 47, citing I. Meyer Pincus & Assoc. v. Oppenheimer & Co., Inc., 936 F.2d 759, 762 (2d Cir.1991). A plaintiffs reliance on a document eliminates the need to consider a Rule 12(b)(6) motion under Rule 56. Id at 48. The complaint references the parts and accessories information bulletins. Complaint at 15. Further, Chem-Tek relied upon these bulletins as an integral element of its claim for tortious interference with a business expectancy. The bulletins, therefore, are properly considered on the motion to dismiss. The purchase order is not referenced in the complaint. Although Chem-Tek" }, { "docid": "16430624", "title": "", "text": "defend the Funds in the Pervale litigation, which was commenced in 1994, constitutes malpractice. Discussion I. The Levin Defendants’ Motion to Dismiss On a Rule 12(b)(6) motion to dismiss, the factual allegations of the complaint are presumed to be true and all factual inferences must be drawn in the plaintiffs favor and against the defendants. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989); Dwyer v. Regan, 777 F.2d 825, 828-29 (2d Cir.1985). Accordingly, the factual allegations considered here and set forth below are taken from Plaintiffs’ Amended Complaint and do not constitute findings of fact by the Court. They are presumed to be true only for the purpose of deciding the present motion to dismiss. Rule 12(b)(6) imposes a substantial burden of proof upon the moving party. A court may not dismiss a complaint unless the movant demonstrates “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, 101-102, 2 L.Ed.2d 80 (1957). Accord Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984) (quoted in H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 250-51, 109 S.Ct. 2893, 2906, 106 L.Ed.2d 195 (1989)). “In practice ‘a complaint ... must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.’ ” Fort Wayne Telsat v. Entertainment & Sports Prog. Network, 753 F.Supp. 109, 111 (S.D.N.Y.1990) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir.1984)). Rule 8(a)(2) of the Federal Rules of Civil Procedure mandates that a complaint contain a “short and plain statement of the claim” that demonstrates “that the pleader is entitled to relief.” The Federal Rules do “not permit conclusory statements to substitute for minimally sufficient factual allegations.” Furlong v. Long Island College Hosp., 710 F.2d 922, 927 (2d Cir.1983). II. The Motions For Summary" }, { "docid": "22732135", "title": "", "text": "part thereof for all purposes.” Fed.R.Civ.P. 10(c). Relying on Rule 10(c), we have held that the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. See Cosmas, 886 F.2d at 13; Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir.1985). In addition, we have held that when a plaintiff chooses not to attach to the complaint or incorporate by reference a prospectus upon which it solely relies and which is integral to the complaint, the defendant may produce the prospectus when attacking the complaint for its failure to state a claim, because plaintiff should not so easily be allowed to escape the consequences of its own failure. See I. Meyer Pincus and Assoc. v. Oppenheimer & Co., Inc., 936 F.2d 759, 762 (2d Cir.1991) (prospectus). Similarly, when a district court decides a motion to dismiss a complaint alleging securities fraud, it may review and consider public disclosure documents required by law to be and which actually have been filed with the SEC, particularly where plaintiff has been put on notice by defendant’s proffer of these public documents. See Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir.1991); Fed. R.Evid. 201(e) (party entitled upon timely request to opportunity to be heard regarding propriety of court taking judicial notice). A finding that plaintiff has had notice of documents used by defendant in a 12(b)(6) motion is significant since, as noted earlier, the problem that arises when a court reviews statements extraneous to a complaint generally is the lack of notice to the plaintiff that they may be so considered; it is for that reason — requiring notice so that the party against whom the motion to dismiss is made may respond— that Rule 12(b)(6) motions are ordinarily converted into summary judgment motions. Where plaintiff has actual notice of all the information in the movant’s papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated. We turn now to" }, { "docid": "13409999", "title": "", "text": "will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The district court should grant a Rule 12(b)(6)/12(c) motion “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)(citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Consideration of a motion to dismiss for failure to state a claim upon which relief can be granted ordinarily focuses on the allegations contained on the face of the complaint. See Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2nd Cir.1991), cert. denied, 503 U.S. 960, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992); Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2nd Cir.1991). On a motion to dismiss, a district court must accept plaintiffs well-pleaded factual allegations as true, Papasan v. Allain, 478 U.S. 265, 283, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986), and the allegations must be “construed favorably to the plaintiff.” LaBounty v. Adler, 933 F.2d 121, 123 (2nd Cir.1991). However, a court may consider documents integral to plaintiffs allegations, even if they are not attached to the pleading or incorporated by reference therein, without converting the motion into one for summary judgment. See Cortec Industries, Inc., 949 F.2d at 47; see also, I. Meyer Pincus & Associates, P.C. v. Oppenheimer & Co., Inc., 936 F.2d 759, 762 (2nd Cir.l991)(quot-ing 5 C. Wright & A. Miller, Federal Practice & Procedure § 1327, at 762-763 and n. 6 (1990))(“when ‘plaintiff fails to introduce a pertinent document as part of his pleading, defendant may introduce the exhibit as part of his motion attacking the pleading.’ ”). “[A] Rule 12(b)(6) motion to dismiss need not be granted nor denied in toto but may be granted as to part of a complaint and denied as to the remainder.” Decker v. Massey-Ferguson, Ltd., 681 F.2d 111," }, { "docid": "14446822", "title": "", "text": "to be inadequate, incomplete, and misleading. Discussion I. Legal Standards A. Rule 12(b)(6) On a Rule 12(b)(6) motion to dismiss, the factual allegations of the complaint are presumed to be true and all factual inferences must be drawn in the plaintiffs’ favor and against the defendants. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989); Dwyer v. Regan, 777 F.2d 825, 828-29 (2d Cir.1985). Accordingly, the factual allegations considered here and set forth below are taken from the Plaintiffs’ Amended Complaint and do not constitute findings of fact by the Court. They are presumed to be true only for the purpose of deciding the present motions. Rule 12(b)(6) also imposes a substantial burden of proof upon the moving party. A court may not dismiss a complaint unless the movant demonstrates “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Accord Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (quoted in H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 2906, 106 L.Ed.2d 195 (1989)). In the event that a plaintiff alleges a claim based on a prospectus, as is the case here, the court may consider the pro spectus in ruling on a Rule 12(b)(6) motion even if the prospectus was not attached to the complaint and made a part thereof under Rule 10(c), Fed.R.Civ.P. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992); I. Meyer Pincus & Assocs. v. Oppenheimer & Co., 936 F.2d 759, 762 (2d Cir.1991). Additionally, if the allegations of a complaint are contradicted by documents made a part thereof, the document controls and the court need not accept as true the allegations of the complaint. See Feick v. Fleener, 653" }, { "docid": "12260832", "title": "", "text": "the prospectuses failed to disclose all the impediments to the project’s development. DISCUSSION On a motion to dismiss we accept all allegations in the complaint as true, and dismiss only if, after drawing all inferences in plaintiffs’ favor, it is clear that they are not entitled to relief. Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989); see Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). There are two arguments made in support of defendants’ contention that the complaint fails to state a claim on which relief can be granted. First, defendants point out that at the core of each of plaintiffs’ securities claims must be a misrepresentation or omission of material fact, Mayer v. Oil Field Sys. Corp., 803 F.2d 749, 755 (2d Cir.1986) (discussing sections 11, 12(2), and Rule 10b-5); see, I. Meyer Pincus & Assoc. v. Oppenheimer & Co., 936 F.2d 759, 761 (2d Cir.1991) (discussing section 11 and Rule 10b — 5), and they argue that the complaint fails to state any such misrepresentations or omissions to support the claims. Additionally, defendants argue that the claims rooted in the Securities Act of 1933 are deficient because the complaint does not allege a sufficient connection between plaintiffs’. securities purchases and the public offerings at issue. We address each of defendants’ arguments in turn. As a threshold matter, we must determine which documents are properly before the Court pursuant to this motion to dismiss. As a general rule, a motion to dismiss addresses only the validity of plaintiffs’ allegations as they appear- on the face of the complaint. Anderson v. Coughlin, 700 F.2d 37, 40 (2d Cir.1983). However, the complaint is deemed to include any document attached as an exhibit or any document that the complaint incorporates by reference. Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir.1985). Since the complaint contains extensive quotations from both the debt and the equity prospectuses, these documents are incorporated by reference into plaintiffs’ pleading. Similarly, the Steam Purchase Agreement between AES and SKC is discussed in numerous paragraphs of the complaint and the complaint" }, { "docid": "8259916", "title": "", "text": "whether future payments may be terminated or reduced should be determined after an evidentiary hearing. (Id. at 8.) The order was affirmed by the Appellate Division, Second Department in a decision dated November 8, 2006. (Stern Deck, Ex. C.) Plaintiff commenced this action on September 14, 2007. ANALYSIS I. Legal Standard On a motion to dismiss pursuant to Rule 12(b)(6), a court must accept as true all of the well-pleaded facts and consider those facts in the light most favor able to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.2005); In re AES Corp. Sec. Litig., 825 F.Supp. 578, 583 (S.D.N.Y.1993) (Conner, J.). Furthermore, in assessing the legal sufficiency of a claim, the court may consider only the facts alleged in the complaint, and any document attached as an exhibit to the complaint or incorporated in it by reference. See Fed.R.Civ.P. 10(c); Dangler v. N.Y. City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir.1999); De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 69 (2d Cir.1996). On a motion to dismiss, a court may also consider matters “of which judicial notice may be taken under Fed. R. Evid. 201.” Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991). Included among such matters are decisions in prior lawsuits. See Jasper v. Sony Music Entm’t, Inc., 378 F.Supp.2d 334 (S.D.N.Y.2005). To incorporate a document by reference, “the Complaint must make a clear, definite and substantial reference to the document[ ].” Thomas v. Westchester County Health Care Corp., 232 F.Supp.2d 273, 275-76 (S.D.N.Y.2002). “Mere discussion or limited quotation of a document in a complaint” is insufficient. R.H. Damon & Co. v. Softkey Software Prods., Inc., 811 F.Supp. 986, 989 & n. 1 (S.D.N.Y.1993). However, the Court may base its decision on a document that is not properly incorporated by reference if the document is “integral” to the Complaint and has" }, { "docid": "2692635", "title": "", "text": "S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)); Morales v. New York State Dep’t of Corrections, 842 F.2d 27, 30 (2d Cir.1988). In deciding a motion to dismiss, the court must accept the plaintiffs allegations of fact as true, together with such reasonable inferences as may be drawn in his favor. Papasan v. Allain, 478 U.S. 265, 283, 106 S.Ct. 2932, 2943, 92 L.Ed.2d 209 (1986). Nevertheless, the complaint must set forth enough information to suggest that relief would be based on some recognized legal theory. Telectronics Proprietary, Ltd. v. Medtronic, Inc., 687 F.Supp. 832, 836 (S.D.N.Y.1988). “The District Court has no obligation to create, unaided by plaintiff, new legal theories to support a complaint.” District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1081-82 (D.C.Cir.1984). In addition, in deciding a motion to dismiss, a court in the Second Circuit may consider documents which form the basis of allegations of fraud if the documents are “integral to the complaint.” I. Meyer Pincus & Assocs., P.C. v. Oppenheimer & Co., 936 F.2d 759, 762 (2d Cir.1991) (affirming dismissal of complaint where prospectus was considered); see also Kramer v. Time Warner Inc., 937 F.2d 767 (2d Cir.1991); Adler v. Berg Harmon Assocs., 816 F.Supp. 919, 922 n. 3 (S.D.NY7 March 29, 1993); Ferber v. Travelers Corp., 785 F.Supp. 1101, 1103-04 n. 6 (D.Conn.1991); United States v. District Council, 778 F.Supp. 738, 749 n. 3 (S.D.N.Y. 1991). The parties have submitted the PPMs, each with an appended tax opinion prepared by Trotter, Smith & Jacobs (“Trotter”). (See, e.g., Burns Aff. Ex. B at A00375) Those documents are integral to plaintiffs’ fraud claims — especially those claims relating to the “true market value” of certain partnership properties. (Compl. ¶ 25) Accordingly, I have considered the PPMs and the Trotter tax opinions in deciding these motions. Rule 9(b) requires that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” See Luce v. Edelstein, 802 F.2d 49, 54 (2d Cir.1986). Rule" }, { "docid": "4770005", "title": "", "text": "a motion to dismiss which the Defendants intended to file unless Plaintiff withdrew or amended her Complaint. Barnum subsequently amended her Complaint on November 24, 1993. Defendants filed their motion to dismiss the Amended Complaint on December 28, 1993 and Barnum cross-moved for Summary Judgment on March 14, 1994. Oral argument on the motions was heard on April 6, 1994. The motions were considered fully submitted as of that date. Discussion On a Rule 12(b)(6) motion to dismiss, the factual allegations of the complaint are presumed to be true and all factual inferences must be drawn in their favor and against the defendants. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989); Dwyer v. Regan, 111 F.2d 825, 828-29 (2d Cir.1985). Accordingly, the factual allegations considered here are taken from the Plaintiffs’ Amended Complaint and do not constitute findings of fact by the Court. They are presumed to be true only for the purpose of deciding the present, motions. Rule 12(b)(6) also imposes a substantial burden of proof upon the moving party. A court may not dismiss a complaint unless the movant demonstrates “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, 101-02, 2 L.Ed.2d 80 (1957); accord Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (quoted in H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S, 229, 250, 109 S.Ct. 2893, 2906, 106 L.Ed.2d 195 (1989)). In the event that a plaintiff alleges a claim based on a written instrument, as is the case here, the court may consider such an instrument in ruling on a Rule 12(b)(6) motion even if it was not attached to the complaint and made a part thereof under Rule 10(c), Fed.R.Civ.P. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991) (“Cortee ”) (considering publicly filed disclosure documents), cert, denied, —" } ]

[ { "docid": "20442331", "title": "", "text": "a civil conspiracy action must go beyond the damages alleged in other causes of action, which is not the case here. Therefore, the court grants Defendants’ motion for summary judgment as to Plaintiffs’ civil conspiracy claim. E. South Carolina Unfair Trade Practices Act Cause of Action In their third cause of action, Plaintiffs allege that Defendant violated the South Carolina Unfair Trade Practices Act by engaging in “unfair, misleading or deceptive acts or practices in the conduct of its trade or commerce,” by “failing to properly disclose the terms of the loan transaction; steering Plaintiffs and Class Members into higher interest rate loans to increase their profit; ... and making loans without consideration of the consumers’ ability to repay the loan or mortgage,” among other things. Defendant asks the court to grant it summary judgment as to this claim because class action suits are forbidden under the Act. The relevant portion of SCUTPA provides: Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by another person of an unfair or deceptive method, act or practice declared unlawful by § 39-5-20 may bring an action individually, but not in a representative capacity, to recover actual damages. S.C.Code Ann. § 39-5-140(a) (1976) (emphasis added). It seems clear from the language of SCUTPA that class action suits are forbidden under the Act, and the South Carolina Supreme Court has held as such. Dema v. Tenet Physician Servs.-Hilton Head, Inc., 383 S.C. 115, 123, 678 S.E.2d 430, 434 (2009); see also Gunnells v. Healthplan Services, Inc., 348 F.3d 417, 423 (4th Cir.2003). Plaintiffs agree that they are prohibited from bringing their Unfair Trade Practices Act claim in a representative capacity, but contend that the cause of action should remain a part of their suit if the court does not grant their motion for class certification. Because, as explained below, the court does denies Plaintiffs’ motion for class certification in this ease, it denies Defendant’s motion for summary judgment as to this claim. II. Plaintiffs’ Motion for Class Certiñcation Plaintiffs move the" } ]

[ { "docid": "15689657", "title": "", "text": "behalf of natural persons and/or businesses, the court concludes that any such claim must be and is hereby DISMISSED. f. South Carolina Plaintiffs assert that South Carolina’s Unfair Trade Practices Act (“SCUTPA”), and state common law, vest the South Carolina Attorney General with parens patriae authority to sue for monetary dam ages on behalf of natural persons. However, while both sources of law do contemplate that the Attorney General has the authority to bring parens patriae claims, there are no grounds for holding that either contemplates extending parens patri-ae authority to suits for monetary damages. SCUTPA, for example, allows the Attorney General to “bring an action in the name of the State against [violators of the statute] to restrain by temporary restraining order, temporary injunction or permanent injunction the use of [any unlawful] method, act or practice.” See S.C.Code Ann. § 39-5-50(a). On its face, this language condones actions by the Attorney General that seek injunctive relief, not monetary damages. And while it is true, as plaintiffs point out, that SCUTPA also allows courts to issue additional orders restoring to any persons property that was acquired by reason of a defendant’s violations of the statute, this provision reaches only equitable relief, as is indicated by use of the word “restore,” within a statutory provision targeted at injunctive relief. See S.C.Code Ann. § 39 — 5—50(b) (courts may “make such additional orders or judgments as may be necessary to restore to any person ... any moneys or property, real or personal, which may have been acquired by means of any practice declared to be unlawful in this article”). The conclusion to be reached from this is that, to the degree that the Attorney General may proceed under SCUTPA in a parens patriae capacity on behalf of natural persons — as plaintiffs note is suggested by In re Lorazepam, 205 F.R.D. at 386-87 — he may only do so in order to seek injunctive relief, not damages. Consideration of South Carolina common law does not compel a different result. Plaintiffs rely on Condon v. Hodges, 349 S.C. 232, 562 S.E.2d 623, 627" }, { "docid": "13195074", "title": "", "text": "Alabama, Georgia, Kentucky, Louisiana, Mississippi, Montana, South Carolina, and Tennessee — prohibit class-action treatment of claims under those statutes. An additional two states — Ohio and Utah — allow class pursuit of consumer-protection claims only if the challenged act has been declared deceptive by a final court judgment or by the state’s attorney general. The parties dispute whether a state statute prohibiting class actions applies to bar such class actions in federal court. The dispute centers on a recent Supreme Court decision. Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co., 559 U.S. 393, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010). According to Target, the controlling opinion in Shady Grove found that federal class treatment of a state law that prohibits class actions is prohibited if the state law is substantive, rather than procedural. Target urges the Court to find that the statutes prohibiting class treatment under these states’ consumer-protection laws here are substantive and thus that class actions raising claims under those laws must be dismissed. In Shady Grove, a patient assigned her rights to insurance benefits arising out of a car accident in which she was injured to the clinic that treated her injuries. Id. at 397, 130 S.Ct. 1431. Allstate paid the clinic the benefits due but allegedly paid them late and then refused to pay the statutory interest on the overdue payments. The clinic then brought a lawsuit in federal court to recover that interest, and sought to represent a class of others to whom Allstate had failed to pay statutory interest. The District Court dismissed the case because New York law “precludes a suit to recover a penalty from proceeding as a class action.” Id. The Second Circuit affirmed, finding that the New Yojk statute at issue, N.Y. Civ. Prac. Law Ann. § 901, did not conflict with Rule 23, and that § 901 was “substantive” within the meaning of Erie and must therefore be applied by federal courts sitting in diversity. There is no majority opinion in Shady Grove. Rather, Justice Scalia wrote the opinion of the Court for a plurality of himself and" }, { "docid": "15878201", "title": "", "text": "method, act or practice declared unlawful by § 39-5-20 [of the SCUPTA].’ ” WñgH v. Craft, 372 S.C. 1, 23, 640 S.E.2d 486, 498 (Ct.App.2006) (first alteration in original) (quoting S.C.Code Ann. § 39-5-140(a) (1976 & Supp.2005)). To bring an action under the SCUTPA, a plaintiff must allege “(1) the defendant engaged in an unlawful trade practice; (2) the plaintiff suffered actual, ascertainable damages as a result of the defendant’s use of the unlawful trade practice; and (3) the unlawful trade practice engaged in by the defendant had an adverse impact on the public interest.” Bessinger v. Food Lion, Inc., 305 F.Supp.2d 574, 579 (D.S.C.2003), aff'd, 115 Fed.Appx. 636 (4th Cir.2004). The Court agrees with Defendants that Plaintiff does not allege an ascertainable loss of money or property in his complaint. The Court therefore grants the remaining Corporate Defendants’ motion seeking dismissal of Plaintiffs claim under the SCUT-PA. IX. Declaratory and Injunctive Relief Plaintiff seeks declaratory and injunc-tive relief in his sixteenth and seventeenth causes-of action. Amended Complaint at ¶¶ 357-63. All defehdants move to dismiss these causes of action. ECF No. 20-1 at 33-4; ECF No. 21-1 at 16-17; ECF No. 22-1 at 2-4. Because the Court dismisses the Above-Store Defendants from all causes of action asserted against them, the Court grants their motion to dismiss. As to the remaining Corporate Defendants and the Store-Level Defendants, however, the Court denies their motions to dismiss because causes of action are still pending against them. Conclusion The Court GRANTS CVS Health Corporation’s and Mark Cosby’s motions to dismiss for lack of personal jurisdiction and DISMISSES them from all causes of action in Plaintiffs complaint. Regarding the remaining defendants and causes of action, the Court summarizes its ruling below and farther clarifies this ruling in an attached chart. The Court (1)DENIES the remaining Corporate Defendants (South Carolina CVS Pharmacy, LLC and CVS Pharmacy, Inc.) and the Store-Level Defendants’ motions to dismiss to Plaintiffs ADA claim; but GRANTS the Above-Store Defendants’ motion to dismiss Plaintiffs ADA. claim; ' (2) DENIES the motions to , dismiss Plaintiffs § 1981 discrimination claim filed by the" }, { "docid": "5637263", "title": "", "text": "state case law characterizes the Donnelly Act’s treble damages remedy as penal. See, e.g., Rubin v. Nine West Group, Inc., 1999 WL 1425364 (N.Y.Sup. 1999); Blumenthal v. Am. Soc’y of Travel Agents, Inc., 1977 WL 18392 (N.Y.Sup. 1977). Therefore, plaintiffs’ class action claims must be dismissed because under New York law a class action 'cannot be maintained if the remedy is penal. N.Y. C.P.L.R. 901(b). Plaintiffs’ class action claims under SCUTPA, S.C.Code Ann. §§ 39-5-10 to -160, must also be dismissed. That Act does not permit suits for damages to be maintained as class actions. § 39-5-140. Citing Gentry v. Yonce, 337 S.C. 1, 522 S.E.2d 137 (1999), plaintiffs incorrectly deny there is any such statutory limitation. In Gentry, the South Carolina Supreme Court merely reversed the lower court on the issue of the sufficiency of the pleadings. It did not address whether a class action may be brought for damages under SCUTPA. Given the plain language of the statute, there is no basis for me to conclude that such an action would be permitted. VI. INTERLOCUTORY APPEAL 28 U.S.C. § 1292(b) provides: [w]hen a district judge, in making in a civil action an order not otherwise ap-pealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. In my judgment, the following rulings I am making today meet both criteria for an interlocutory appeal: (1) dismissal of plaintiffs’ monetary damages claims on Illinois Brick-related grounds; (2) dismissal of the foreign plaintiffs’ Sherman Act claims; (3) the removability of state actions claiming injunctive relief and/or disgorgement of profits; (4) the removability of the Super-novich and McWhinney cases on the basis of federal question jurisdiction; and (5) dismissal of plaintiffs’ class action claims in the Gravity case. If the Fourth Circuit permits an interlocutory appeal, I will direct that discovery proceed as to all liability issues other" }, { "docid": "8289443", "title": "", "text": "OPINION OF THE COURT [559 U.S. 395] Justice Scalia announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II-A, an opinion with respect to Parts II-B and II-D, in which The Chief Justice, Justice Thomas, and Justice Sotomayor join, and an opinion with respect to Part II-C, in which The Chief Justice and Justice Thomas join. [559 U.S. 396] New York law prohibits class actions in suits seeking penalties or statutory minimum damages. We consider whether this precludes a federal district court sitting in diversity from entertaining a class action under Federal Rule of Civil Procedure 23. [559 U.S. 397] I The petitioner’s complaint alleged the following: Shady Grove Orthopedic Associates, P. A., provided medical care to Sonia E. Galvez for injuries she suffered in an automobile accident. As partial payment for that care, Galvez assigned to Shady Grove her rights to insurance benefits under a policy issued in New York by Allstate Insurance Co. Shady Grove tendered a claim for the assigned benefits to Allstate, which under New York law had 30 days to pay the claim or deny it. See N. Y. Ins. Law Ann. § 5106(a) (West 2009). Allstate apparently paid, but not on time, and it refused to pay the statutory interest that accrued on the overdue benefits (at two percent per month), see ibid. Shady Grove filed this diversity suit in the Eastern District of New York to recover the unpaid statutory interest. Alleging that Allstate routinely refuses to pay interest on overdue benefits, Shady Grove sought relief on behalf of itself and a class of all others to whom Allstate owes interest. The District Court dismissed the suit for lack of jurisdiction. 466 F. Supp. 2d 467 (2006). It reasoned that N. Y. Civ. Prac. Law Ann. § 901(b), which precludes a suit to recover a “penalty” from proceeding as a class action, applies in diversity suits in federal court, despite Federal Rule of Civil Procedure 23. Concluding that statutory interest is a “penalty” under New York law, it held that § 901(b) prohibited" }, { "docid": "15689656", "title": "", "text": "not traditionally included suits for monetary damages. See, e.g., Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. at 600-07, 102 S.Ct. 3260 (describing history of common law parens patriae authority and citing relevant case law, under which state attorneys general sought injunctive relief). Indeed, the recognition that common law parens patriae authority did not embrace damages actions is precisely what led the Ninth Circuit in California v. Frito-Lay to decline to allow a parens patriae action for damages to go forward, absent affirmative authorizing legislation. See 74 F.2d 777 (parens patri-ae actions for damages are “not the type of state action taken to afford the sort of benefit that the common law concept of parens patriae contemplates”). This same rationale has led this court, too, to demand that some conclusive authority be present that expressly permits such claims. To that end, and plaintiffs having failed to present the court with any indication that North Dakota’s Attorney General has been vested with the express authority to bring parens patriae suits for damages on behalf of natural persons and/or businesses, the court concludes that any such claim must be and is hereby DISMISSED. f. South Carolina Plaintiffs assert that South Carolina’s Unfair Trade Practices Act (“SCUTPA”), and state common law, vest the South Carolina Attorney General with parens patriae authority to sue for monetary dam ages on behalf of natural persons. However, while both sources of law do contemplate that the Attorney General has the authority to bring parens patriae claims, there are no grounds for holding that either contemplates extending parens patri-ae authority to suits for monetary damages. SCUTPA, for example, allows the Attorney General to “bring an action in the name of the State against [violators of the statute] to restrain by temporary restraining order, temporary injunction or permanent injunction the use of [any unlawful] method, act or practice.” See S.C.Code Ann. § 39-5-50(a). On its face, this language condones actions by the Attorney General that seek injunctive relief, not monetary damages. And while it is true, as plaintiffs point out, that SCUTPA also allows courts to" }, { "docid": "15878199", "title": "", "text": "604, 753 S.E.2d 840, 844 (2012) (discussing intentional interference with contract); Santoro v. Schulthess, 384 S.C. 250, 262, 681 S.E.2d 897, 903 (Ct.App.2009) (discussing intentional interference with prospective contractual relations). This principle, often called the “stranger doctrine,” prevents a party to an actual or prospective contract from being sued. See BCD, LLC, Rosen Campus I, LLC v. BMW Mfg. Co., LLC, No. 6:05-CV-2152-GRA, 2007 WL 128887, at 1-2 (D.S.C. Jan. 12, 2007) (addressing state law claims for “tortious interference with contractual relations [and] interference with prospective contractual relations” and observing “though South Carolina has.not adopted the ‘Stranger Doctrine’ in name, the law as it exists provides comparable protection .to that of the ‘Stranger Doctrine’ ”). The Court agrees with the defendants that-the stranger doctrine bars Plaintiffs claims for both intentional interference with contract and intentional interference with prospective contractual relations. A fair reading of Plaintiff’s complaint revéals no allegations suggesting the defendants were strangers'to'the alleged contractual relations at issue or to any business relationship giving rise to and underpinning the alleged contractual relations. The only contractual relations with which Plaintiff claims the defendants interfered were his own alleged contractual relations with CVS, not with any third party. See Amended Complaint at ¶¶ 326, 331. As a result,' Plaintiff cannot maintain- a suit against any defendant for either type of tortious interference claim. The Court therefore grants all defendants’ motions to dismiss Plaintiffs claims for intentional interference with contract and intentional interference with prospective contractual relations. G. Unfair Trade Practices : Plaintiff brings a claim against the Corporate Defendants alleging they violated the South Carolina Unfair Trade Practices Act (SCUTPA). The remaining Corporate Defendants seek dismissal of Plaintiffs SCUTPA claim, arguing he has neither sufficiently pled any unfair or deceptive trade practices nor sufficiently alleged any ascekainable loss of money or property. ECF No. 20-1 at 31-33. Section 39-5-140(a) of the SCUT-PA “creates a private right of action in favor of ‘[a]ny person who. suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by another person of an unfair or deceptive" }, { "docid": "21083040", "title": "", "text": "the Subscription Agreement; ABIG was not. TLP later filed for bankruptcy protection in the Bankruptcy Court for the Middle District of North Carolina, and it informed the Longs and other investors that it would neither pay interest on the promissory notes nor return the principal investments. The Longs’ state-court complaint alleges eleven individual and class causes of action against ABIG arising out of its alleged participation in the fraudulent promissory-note scheme: (1) interference with contract, (2) securities fraud, (3) negligence, (4) equitable subordination, (5) civil conspiracy, (6) unjust enrichment, (7) respondeat superior, (8) rescission, (9) participation and alter ego, (10) violation of the South Carolina Unfair Trade Practices Act (SCUTPA), and (11) aiding and abetting. In essence, these causes of action seek recovery for: (1) ABIG’s alleged interference with TLP’s obligations under the notes (interference with contract claim); (2) ABIG’s alleged failure to disclose that TLP would be unable to pay the notes (securities fraud and negligence claims); (3) ABIG’s alleged conspiracy with, and control over, TLP in issuing the notes and in insuring that TLP did not make payments thereon (civil conspiracy); (4) ABIG’s allegedly unlawful retention of the proceeds from the notes (unjust enrichment and rescission claims); and (5) ABIG’s alleged unfair trade practices regarding the notes (SCUTPA claim). The Longs seek to recover from ABIG actual damages, punitive damages and/or treble damages, rescission of the notes, a declaratory judgment subordinating ABIG’s interest in the notes, and attorney’s fees and costs. The Longs did not name TLP as a party to the suit. After the Longs filed their complaint, ABIG removed the suit to the bankruptcy court where TLP’s bankruptcy proceeding was pending, but the bankruptcy court remanded to state court. On August 5, 2004, ABIG filed a petition to compel arbitration against the Longs in the District Court for the District of South Carolina, see 9 U.S.C.A. § 4 (West 1999) (providing that “[a] party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have" }, { "docid": "20125640", "title": "", "text": "Brick limitation on indirect purchaser claims. See, e.g., In re TFT II, 599 F.Supp.2d at 1185-87; FTC v. Mylan Labs., Inc., 62 F.Supp.2d 25, 43 (D.D.C.1999). In addition to claims (if any) brought under the laws of Florida, Illinois, Montana, New York, North Carolina, and North Dakota, all parasitic claims premised on the state laws of states that follow Illinois Brick are DISMISSED. To summarize: Plaintiffs’ autonomous unjust enrichment claims are dismissed, but their parasitic claims under the laws of many, but not all, states pleaded in the TCAC may proceed. 4. Newly Added State Law Claims The TCAC adds state-law claims under Illinois and New York law. Plaintiffs argue that the Supreme Court’s decision in Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., — U.S. -, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010) allows them to assert these claims. The Court addresses these newly added claims, beginning with claims under Illinois law. i. Illinois Defendants argue that Plaintiffs’ claim under Illinois antitrust law on behalf of all Illinois-resident indirect purchasers fails because the law expressly precludes private parties from asserting class actions on behalf of indirect purchasers. They acknowledge that the Illinois law does not “deny any person who is an indirect purchaser the right to sue for damages,” but they say that only the state attorney general may assert a class action under this law. 740 111. Comp. Stat. 10/7(2). They therefore argue that Plaintiffs lack standing under the Illinois statute or that Shady Grove does not permit them to assert a claim. The Court begins with Shady Grove because that analysis determines whether Plaintiffs have standing. Shady Grove is a decision about the contours of the Erie doctrine, but it did not result in unanimity on all points. The Court considered whether a New York law prohibiting class actions in any suit seeking penalties or statutory minimum damages precluded a federal court from exercising diversity jurisdiction over a class action. 130 S.Ct. at 1436 (majority op.). The question for the Court was whether a suit for statutory damages could proceed in federal court as a class action" }, { "docid": "20125641", "title": "", "text": "expressly precludes private parties from asserting class actions on behalf of indirect purchasers. They acknowledge that the Illinois law does not “deny any person who is an indirect purchaser the right to sue for damages,” but they say that only the state attorney general may assert a class action under this law. 740 111. Comp. Stat. 10/7(2). They therefore argue that Plaintiffs lack standing under the Illinois statute or that Shady Grove does not permit them to assert a claim. The Court begins with Shady Grove because that analysis determines whether Plaintiffs have standing. Shady Grove is a decision about the contours of the Erie doctrine, but it did not result in unanimity on all points. The Court considered whether a New York law prohibiting class actions in any suit seeking penalties or statutory minimum damages precluded a federal court from exercising diversity jurisdiction over a class action. 130 S.Ct. at 1436 (majority op.). The question for the Court was whether a suit for statutory damages could proceed in federal court as a class action notwithstanding the state statute’s limitation. Id. at 1437. The same question exists here because the Illinois law clearly provides for an individual remedy for indirect purchasers, yet it limits those who may maintain a class action for the same alleged violation to only the state attorney general. 740 Ill. Comp. Stat. 10/7(2) (“No provision of this Act shall deny any person who is an indirect purchaser the right to sue for damages.”). Setting out the legal framework, the Court proceeded to analyze two questions: first, whether the applicable federal rule applies, and second, whether that rule “exceeds statutory authorization or Congress’s rulemaking power.” 130 S.Ct. at 1437 (majority op.). A majority of the Court concluded that Rule 23 conflicted with the state statute because Rule 23 “creates a categorical rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class action.” Id. at 1437-38. The same analysis applies in this case: a diversity plaintiff in federal court may maintain a class action if he wishes; this rule conflicts with" }, { "docid": "10679188", "title": "", "text": "a conflicting state law. As the Supreme Court recently recognized, the framework for deciding this question is “familiar.” Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., — U.S. -, 130 S.Ct. 1431, 1437, 176 L.Ed.2d 311 (2010). The Court must “first determine whether [the federal rule] answers the question in dispute.” Id. (citing Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 4-5, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987)). “This question involves a straightforward exercise in statutory interpretation to determine if the statute covers the point in dispute.” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 26, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (citing Burlington Northern and Walker v. Armco Steel Corp., 446 U.S. 740, 749-50, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980)). If the federal rule answers or covers the question in dispute, the federal rule governs unless it is invalid. Shady Grove, 130 S.Ct. at 1437; Stewart, 487 U.S. at 27, 108 S.Ct. 2239. The Court does not “wade into Erie’s murky waters unless the federal rule is inapplicable or invalid.” Shady Grove, 130 S.Ct. at 1437 (citing Hanna v. Plumer, 380 U.S. 460, 469-71, 85 5. Ct. 1136, 14 L.Ed.2d 8 (1965)). b. The Supreme Court’s Opinion in Shady Grove The Supreme Court recently applied this test in considering whether a New York law governing class actions precluded a federal court sitting in diversity from entertaining a class action under Federal Rule of Civil Procedure 23. The state law in Shady Grove prohibited class actions in suits seeking penalties or statutory minimum damages. Shady Grove, 130 S.Ct. at 1436 n. 1. Rule 23, of course, has no such prohibition. The plaintiffs in Shady Grove, who had brought suit in federal district court, wished to maintain a class action to recover unpaid statutory interest from an insurance company. Id. at 1436-37. As such, the case would not have been able to proceed as a class action in New York state court but would have been able to proceed as a class action in federal court under Rule 23. Both the district court and the United" }, { "docid": "5637262", "title": "", "text": "stated that the language of the statute “clearly indicates that ... [it] is only applicable if the offending conduct took place within the territorial borders of the state of Ohio,” Id. at 339. Here, because Microsoft sold products to consumers residing in Ohio, it cannot be said that some of the alleged offending conduct did not take place within the borders of that state. Cf. Brown v. Liberty Clubs, 45 Ohio St.3d 191, 543 N.E.2d 783 (1989) (finding an Indiana seller liable to an Ohio consumer for conduct directed toward the consumer in Ohio from outside the state). Microsoft’s only argument as to the claims brought by plaintiffs under the South Carolina Unfair Trade Practices Act (“SCUTPA”), S.C.Code Ann. §§ 39-5-10 to -160, is that the South Carolina antitrust law applies only to intrastate con duct. Again, Microsoft has cited no authority in support of its position. D. The complaints brought under New York law assert claims under the state’s antitrust statute, known as the Donnelly Act, N.Y. Gen. Bus. Law § 340. New York state case law characterizes the Donnelly Act’s treble damages remedy as penal. See, e.g., Rubin v. Nine West Group, Inc., 1999 WL 1425364 (N.Y.Sup. 1999); Blumenthal v. Am. Soc’y of Travel Agents, Inc., 1977 WL 18392 (N.Y.Sup. 1977). Therefore, plaintiffs’ class action claims must be dismissed because under New York law a class action 'cannot be maintained if the remedy is penal. N.Y. C.P.L.R. 901(b). Plaintiffs’ class action claims under SCUTPA, S.C.Code Ann. §§ 39-5-10 to -160, must also be dismissed. That Act does not permit suits for damages to be maintained as class actions. § 39-5-140. Citing Gentry v. Yonce, 337 S.C. 1, 522 S.E.2d 137 (1999), plaintiffs incorrectly deny there is any such statutory limitation. In Gentry, the South Carolina Supreme Court merely reversed the lower court on the issue of the sufficiency of the pleadings. It did not address whether a class action may be brought for damages under SCUTPA. Given the plain language of the statute, there is no basis for me to conclude that such an action would be permitted." }, { "docid": "13195079", "title": "", "text": "6019320, at *4 (D.S.C. Nov. 13, 2013) (South Carolina Unfair Trade Practices Act); Bearden v. Honeywell Int’l, No. 3:09-1035, 2010 WL 3239285, at *10 (M.D.Tennessee Aug. 16, 2010) (Tennessee Consumer Protection Act). 'Plaintiffs point to a single case that disagreed with this analysis and found that claims under the consumer-protection statutes of Georgia, Louisiana, and South Carolina could be pursued as a class action. In re Hydroxycut Mktg. & Sales Practices Litig., 299 F.R.D. 648, 651 (S.D.Cal.2014). At least one other decision has explicitly refused to follow Hydroxycut, however, finding that a class action could not be maintained for violations of South Carolina’s consumer-protection statute. In re Auto. Parts Antitrust Litig., 29 F.Supp.3d 982, 1012-13 (E.D.Mich.2014). Although it is perhaps oversimplification to call Justice Stevens’s concurrence the holding of the Court in Shady Grove, it is clear that five Justices believe that it is the nature of the state statute at issue— whether the statute is substantive or procedural — that governs whether the state law can trump Rule 23’s federal class-action mechanism. This Court agrees with the decisions cited above that when a state legislature creates a private right of action to enforce a state statute’s requirements, the state’s definition of that private right of action to prohibit class actions “define[s] the scope of the state-created right,” Shady Grove, 559 U.S. at 423, 130 S.Ct. 1431, and is therefore substantive. Accordingly, Plaintiffs cannot maintain a class action as to the alleged consumer-protection statutory violations in Alabama, Georgia, Kentucky, Louisiana, Mississippi, Montana, South Carolina, and Tennessee. Plaintiffs do not address Target’s argument that a class action is prohibited under Utah’s consumer-protection statute, and thus concede that issue. Plaintiffs assert that a class action is appropriate for violations of Ohio’s statute, and the Complaint catalogs cases holding allegedly similar conduct to be deceptive in violation of Ohio’s statute. (Compl. ¶ 263.Ü.) Plaintiffs contend that this is sufficient to establish entitlement to class-action status under Ohio law. Target responds that none of these cases discusses an “act substantially similar to Target’s alleged conduct.” (Def.’s Reply Mem. at 19.) Target does not further" }, { "docid": "15689658", "title": "", "text": "issue additional orders restoring to any persons property that was acquired by reason of a defendant’s violations of the statute, this provision reaches only equitable relief, as is indicated by use of the word “restore,” within a statutory provision targeted at injunctive relief. See S.C.Code Ann. § 39 — 5—50(b) (courts may “make such additional orders or judgments as may be necessary to restore to any person ... any moneys or property, real or personal, which may have been acquired by means of any practice declared to be unlawful in this article”). The conclusion to be reached from this is that, to the degree that the Attorney General may proceed under SCUTPA in a parens patriae capacity on behalf of natural persons — as plaintiffs note is suggested by In re Lorazepam, 205 F.R.D. at 386-87 — he may only do so in order to seek injunctive relief, not damages. Consideration of South Carolina common law does not compel a different result. Plaintiffs rely on Condon v. Hodges, 349 S.C. 232, 562 S.E.2d 623, 627 (2002). However, while Condon does, indeed, embrace the general principle that the State Attorney General has constitutional and statutory authority to bring whatever claims he sees fit in the name of the state, Condon did not address monetary damages. Rather, it dealt with the Attorney General’s right to bring an equitable claim against the governor of the state. Id. This being the case, Condon’s general affirmation of the Attorney General’s parens patriae authority, as recognized at common law, fails to provide support for a finding that such authority extends beyond its normal common law boundaries, to include suits for monetary damages. In short, the court declines to hold that South Carolina’s parens patriae claim for damages on behalf of natural persons may go forward. Such claim is accordingly DISMISSED. g. Tennessee Plaintiffs argue that the Tennessee Attorney General has parens patriae authority to sue for monetary damages on behalf of consumers, by virtue of the Attorney General’s status as a constitutional officer, with statutory and common law duties and powers. See, e.g., Tenn.Code Ann. §" }, { "docid": "15878200", "title": "", "text": "contractual relations with which Plaintiff claims the defendants interfered were his own alleged contractual relations with CVS, not with any third party. See Amended Complaint at ¶¶ 326, 331. As a result,' Plaintiff cannot maintain- a suit against any defendant for either type of tortious interference claim. The Court therefore grants all defendants’ motions to dismiss Plaintiffs claims for intentional interference with contract and intentional interference with prospective contractual relations. G. Unfair Trade Practices : Plaintiff brings a claim against the Corporate Defendants alleging they violated the South Carolina Unfair Trade Practices Act (SCUTPA). The remaining Corporate Defendants seek dismissal of Plaintiffs SCUTPA claim, arguing he has neither sufficiently pled any unfair or deceptive trade practices nor sufficiently alleged any ascekainable loss of money or property. ECF No. 20-1 at 31-33. Section 39-5-140(a) of the SCUT-PA “creates a private right of action in favor of ‘[a]ny person who. suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by another person of an unfair or deceptive method, act or practice declared unlawful by § 39-5-20 [of the SCUPTA].’ ” WñgH v. Craft, 372 S.C. 1, 23, 640 S.E.2d 486, 498 (Ct.App.2006) (first alteration in original) (quoting S.C.Code Ann. § 39-5-140(a) (1976 & Supp.2005)). To bring an action under the SCUTPA, a plaintiff must allege “(1) the defendant engaged in an unlawful trade practice; (2) the plaintiff suffered actual, ascertainable damages as a result of the defendant’s use of the unlawful trade practice; and (3) the unlawful trade practice engaged in by the defendant had an adverse impact on the public interest.” Bessinger v. Food Lion, Inc., 305 F.Supp.2d 574, 579 (D.S.C.2003), aff'd, 115 Fed.Appx. 636 (4th Cir.2004). The Court agrees with Defendants that Plaintiff does not allege an ascertainable loss of money or property in his complaint. The Court therefore grants the remaining Corporate Defendants’ motion seeking dismissal of Plaintiffs claim under the SCUT-PA. IX. Declaratory and Injunctive Relief Plaintiff seeks declaratory and injunc-tive relief in his sixteenth and seventeenth causes-of action. Amended Complaint at ¶¶ 357-63. All defehdants move to" }, { "docid": "20442330", "title": "", "text": "practice of packaging and selling the vast majority of the Defendant’s residential subprime loans to the secondary market. These loans were designed not for long term viability, but for short-term financing, and brokers and agents routinely promised that borrowers could refinance before the loan became unaffordable when the introductory rate expired. (Resp. in opp. at 6.) While it is true that Plaintiffs’ complaint does make this allegation, this language is quoted from a pleading in a suit brought by the Attorney General for the Commonwealth of Massachusetts against Defendant in that state. And even if the court were able to distinguish Plaintiffs’ negligent misrepresentation claim from their civil conspiracy claim, based on this quoted language, Plaintiffs have not produced any evidence that Defendant conspired with another party to misrepresent the terms of the Loan for the purpose of injuring them. Under South Carolina law, Plaintiffs must prove additional acts in furtherance of a conspiracy, and they have failed to produce any evidence to create an issue as to this matter. Moreover, the damages alleged in a civil conspiracy action must go beyond the damages alleged in other causes of action, which is not the case here. Therefore, the court grants Defendants’ motion for summary judgment as to Plaintiffs’ civil conspiracy claim. E. South Carolina Unfair Trade Practices Act Cause of Action In their third cause of action, Plaintiffs allege that Defendant violated the South Carolina Unfair Trade Practices Act by engaging in “unfair, misleading or deceptive acts or practices in the conduct of its trade or commerce,” by “failing to properly disclose the terms of the loan transaction; steering Plaintiffs and Class Members into higher interest rate loans to increase their profit; ... and making loans without consideration of the consumers’ ability to repay the loan or mortgage,” among other things. Defendant asks the court to grant it summary judgment as to this claim because class action suits are forbidden under the Act. The relevant portion of SCUTPA provides: Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or" }, { "docid": "10679189", "title": "", "text": "invalid.” Shady Grove, 130 S.Ct. at 1437 (citing Hanna v. Plumer, 380 U.S. 460, 469-71, 85 5. Ct. 1136, 14 L.Ed.2d 8 (1965)). b. The Supreme Court’s Opinion in Shady Grove The Supreme Court recently applied this test in considering whether a New York law governing class actions precluded a federal court sitting in diversity from entertaining a class action under Federal Rule of Civil Procedure 23. The state law in Shady Grove prohibited class actions in suits seeking penalties or statutory minimum damages. Shady Grove, 130 S.Ct. at 1436 n. 1. Rule 23, of course, has no such prohibition. The plaintiffs in Shady Grove, who had brought suit in federal district court, wished to maintain a class action to recover unpaid statutory interest from an insurance company. Id. at 1436-37. As such, the case would not have been able to proceed as a class action in New York state court but would have been able to proceed as a class action in federal court under Rule 23. Both the district court and the United States Court of Appeals for the Second Circuit held that the state law applied in federal diversity actions. The Second Circuit found no conflict between the two rules because it concluded that Rule 23 and the New York state rule “address[ed] different issues.” Id. at 1437. Finding no federal rule on point, the Second Circuit held that the New York state rule was “substantive” within the meaning of the Erie doctrine and accordingly must be applied in federal diversity actions. Id. The Supreme Court disagreed and reversed. Justice Scalia delivered the opinion of the Court as to the first step of the analysis, that is, whether Rule 23 “answers the question in dispute.” M The question in dispute, as the majority saw it, was “whether Shady Grove’s suit may proceed as a class action.” Id. As the Court held, Rule 23 provided an answer to that question. The Court first looked at the text and scope of Rule 23, which states that a class action “may be maintained” as long as certain prerequisites are met." }, { "docid": "13195078", "title": "", "text": "aligned with the dissenting opinion of Justice Ginsburg, who was writing on behalf of three other Justices. Target argues that Justice Stevens’s opinion controls because it is the narrow est opinion on which five Justices agreed. And the majority of courts to have addressed the issue have determined that Justice Stevens’s concurrence is the controlling opinion in Shady Grove. See Davenport v. Charter Comm’cns, LLC, 35 F.Supp.3d 1040, 1050-51 (E.D.Mo.2014) (surveying cases). Accordingly, if the state law “define[s] the scope of [a] state-created right,” federal class-action treatment is inappropriate. Most courts that have evaluated state consumer-protection laws that conflict with Rule 23 have determined that Rule 23 cannot be applied to otherwise prohibited class actions, because the class-action prohibition defines the scope of the state-created right, namely the right to bring a lawsuit for violations of the state’s consumer-protection law. Davenport, 35 F.Supp.3d at 1051-52 (Kentucky’s consumer-protection statute); Lisk v. Lumber One Wood Preserving, LLC, 993 F.Supp.2d 1376, 1383-85 (N.D.Ala.2014) (Alabama Deceptive Trade Practices Act); Stalvey v. Am. Bank Holdings, Inc., No. 4:13cv714, 2013 WL 6019320, at *4 (D.S.C. Nov. 13, 2013) (South Carolina Unfair Trade Practices Act); Bearden v. Honeywell Int’l, No. 3:09-1035, 2010 WL 3239285, at *10 (M.D.Tennessee Aug. 16, 2010) (Tennessee Consumer Protection Act). 'Plaintiffs point to a single case that disagreed with this analysis and found that claims under the consumer-protection statutes of Georgia, Louisiana, and South Carolina could be pursued as a class action. In re Hydroxycut Mktg. & Sales Practices Litig., 299 F.R.D. 648, 651 (S.D.Cal.2014). At least one other decision has explicitly refused to follow Hydroxycut, however, finding that a class action could not be maintained for violations of South Carolina’s consumer-protection statute. In re Auto. Parts Antitrust Litig., 29 F.Supp.3d 982, 1012-13 (E.D.Mich.2014). Although it is perhaps oversimplification to call Justice Stevens’s concurrence the holding of the Court in Shady Grove, it is clear that five Justices believe that it is the nature of the state statute at issue— whether the statute is substantive or procedural — that governs whether the state law can trump Rule 23’s federal class-action mechanism. This Court" }, { "docid": "8289539", "title": "", "text": "or individual, and that § 901(b) addresses penalties that are created under any source of state or federal law. . Justice Ginsburg asserts that class certification in this matter would “transform a $500 case into a $5 million award.’’ Post, at 436, 176 L. Ed. 2d, at 341. But in fact, class certification would transform 10,000 $500 cases into one $5 million case. It may be that without class certification, not all of the potential plaintiffs would bring their cases. But that is true of any procedural vehicle; without a lower filing fee, a conveniently located courthouse, easy-to-use federal procedural rules, or many other features of the federal courts, many plaintiffs would not sue. Justice Ginsburg, with whom Justice Kennedy, Justice Breyer, and Justice Alito join, dissenting. The Court today approves Shady Grove’s attempt to transform a $500 case into a $5 million award, although the State creating the right to recover has proscribed this alchemy. If Shady Grove had filed suit in New York state court, the 2% interest payment authorized by New York Ins. Law Ann. § 5106(a) (West 2009) as a penalty for overdue benefits would, by Shady Grove’s own measure, amount to no more than [559 U.S. 437] $500. By instead filing in federal court based on the parties’ diverse citizenship and requesting class certification, Shady Grove hopes to recover, for the class, statutory damages of more than $5 million. The New York Legislature has barred this remedy, instructing that, unless specifically permitted, “an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained as a class action.” N. Y. Civ. Prac. Law Ann. (CPLR) § 901(b) (West 2006). The Court nevertheless holds that Federal Rule of Civil Procedure 23, which prescribes procedures for the conduct of class actions in federal courts, preempts the application of § 901(b) in diversity suits. The Court reads Rule 23 relentlessly to override New York’s restriction on the availability of statutory damages. Our decisions, however, caution us to ask, before undermining state legislation: Is this conflict really necessary? Cf. Traynor, Is" }, { "docid": "6436635", "title": "", "text": "filed rate doctrine. The court, therefore, finds LILCO inapplicable to the facts of this case. To support their argument that the Keogh doctrine applies to RICO claims, the defendants cite H.J. Inc. v. Northwestern Bell Tel. Co., 954 F.2d 485 (8th Cir.1992) (holding that the filed rate doctrine does apply in a RICO action). Also, the court finds persuasive the case of Taffet v. Southern Co., 967 F.2d 1483 (11th Cir.1992) which holds that the filed rate doc trine applies to a RICO claim. Based on the reasoning of H.J. Inc. and Taffet, the court finds that the Keogh doctrine applies to bar RICO claims. Based on the foregoing, the court finds that the Keogh doctrine bars Lifschultz’s anti-trust claim and RICO claims. Summary judgment must be granted as to those claims. VI. SCUTPA Lifschultz has asserted a claim under the SCUTPA alleging that the defendants used unfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or commerce in violation of S.C.Code Ann. § 39-5-20 (Law.Co-op.1976). A. Public Interest The defendants assert that Lifschultz has failed to demonstrate that the alleged unfair or deceptive practices “affect the public interest” as required by Noack Enterprises, Inc. v. Country Corner Interiors, Inc., 290 S.C. 475, 351 S.E.2d 347 (Ct.App.1986). A disappointed competitor unable to show harm to competition from the alleged deceptive and unfair trade practices does not have a claim. Steuer v. National Medical Enterprises, Inc., 672 F.Supp. 1489, 1521-22 (D.S.C.1987). Nevertheless, “a finding of conspir acy to restrain competition is tantamount to a finding that the underlying conduct has ‘an impact upon the public interest.’ ” Omni Outdoor Advertising, Inc. v. Columbia Outdoor Advertising, Inc., 891 F.2d 1127, 1143 (4th Cir.1989), rev’d on other grounds sub nom. City of Columbia v. Omni Outdoor Advertising, Inc., — U.S. —, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991). Lifschultz argues that its allegations of conspiracy are sufficient to create a question of fact as to the SCUTPA claim. The court does not agree. The court has previously ruled that there is not sufficient evidence for a" } ]

[ { "docid": "20650553", "title": "", "text": "relevant. There is no evidence that the District Court used such testimony to reach its decision on habitual residence, the only subject of its holding. Likewise, we reject Karkkainen’s claim that the District Court improperly permitted testimony regarding Maria’s best interests. Karkkainen points to no specific instances in which the District Court permitted such testimony, and we have found none within the record. We also conclude that the District Court admitted hearsay testimony only under the exceptions of the Federal Rules and properly limited its use. Thus, we find no abuse of discretion on these points. Finally, Karkkainen argues that the District Court erred in finding that the parties agreed to allow Maria to choose whether she would live in the United States indefinitely or return to Finland at the end of the summer of 2003. We must review this factual finding for clear error. Baxter, 423 F.3d at 367; Delvoye v. Lee, 329 F.3d 330, 332 (3d Cir.2003). We will not reverse as long as the District Court’s account of the evidence is “plausible in light of the record,” even if convinced that we “would have weighed the evidence differently.” Anderson v. City of Bessemer, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). The record supports the District Court’s conclusion that the parties agreed when Maria left for the United States in June 2003 that she would choose where she would reside after the summer. At an interview at the American Embassy in Helsinki in September 2002, d’ltri explained to a consular officer that Maria would have the option of remaining in the United States after her visit in the summer of 2003. Karkkainen was present during the conversation and did not object to the proposed plan. Email exchanges and multiple discussions between the parties leading up to Maria’s 2003 trip to the United States also suggested that Karkkainen agreed Maria was “free to go” to the United States indefinitely. In addition, Karkkainen aided the Respondents in their efforts to place Maria in The Ellis School for the Fall 2003 school semester and never contacted the" } ]

[ { "docid": "23392631", "title": "", "text": "case-in-chief. See Int’l Union of Operating Eng’rs, Local Union 103 v. Ind. Constr. Corp., 13 F.3d 253, 257 (7th Cir.1994) (“[I]t is within the trial court’s sound discretion to decline rendering judgment until hearing all of the evidence.”). In considering whether to grant judgment under Rule 52(c), the district court applies the same standard of proof and weighs the evidence as it would at the conclusion of the trial. See Emerson Elec. Co. v. Farmer, 427 F.2d 1082, 1086 (5th Cir.1970); Falter v. Veterans Admin., 632 F.Supp. 196, 200 (D.N.J.1986). Accordingly, the court does not view the evidence through a particular lens or draw inferences favorable to either party. See Ritchie v. United States, 451 F.3d 1019, 1023 (9th Cir.2006); Giant Eagle, Inc. v. Fed. Ins. Co., 884 F.Supp. 979, 982 (W.D.Pa.1995). The district court should also make determinations of witness credibility where appropriate. See Parker v. Long Beach Mortgage Co., 534 F.Supp.2d 528, 535 (E.D.Pa.2008); Falter, 632 F.Supp. at 200. Finally, if the court enters judgment under Rule 52(c), it must make findings of fact and conclusions of law pursuant to Rule 52(a). We review the district court’s factual findings for clear error and its legal conclusions de novo. See Rego, 181 F.3d at 400. For a finding to be clearly erroneous, we must be left with the definite and firm conviction that a mistake has been committed. Gordon v. Lewistown Hosp., 423 F.3d 184, 201 (3d Cir.2005). We will not reverse “[i]f the district court’s account of the evidence is plausible in light of the record viewed in its entirety” even if we would have weighed that evidence differently. Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). “[W]hen a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.” Id. at 575, 105 S.Ct. 1504; accord MacDraw, Inc. v. CIT" }, { "docid": "1850648", "title": "", "text": "Applying AEDPA deference, a federal court may grant a writ of habeas corpus if the state court’s adjudication on the merits “was contrary to, of involved an unreasonable application of, clearly established, Federal law as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). “Clearly established Federal law ... refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court’s findings of fact are “presumed to be correct” unless rebutted “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Drake I, 321 F.3d at 345. In this case, we have already held that no deference to the state courts’ conclusions is required because the state courts did not permit the development of the factual record. Drake I, 321 F.3d at 345-47. II. District Court Decision We review a district court’s legal conclusions in denying a habeas petition de novo and its factual findings for clear error. Hawkins, 460 F.3d at 242. Clear error review requires examination of factual findings to determine whether “the district court’s account of the evidence is plausible in light of the record viewed in its entirety.” Anderson v. City of Bessemer, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). “The reviewing court may reverse ... when, although there is evidence to support the finding, ‘on the entire evidence [the court] is left with the definite and firm conviction that a mistake has been committed.’ ” Doe v. Menefee, 391 F.3d 147, 164 (2d Cir.2004) (quoting Anderson, 470 U.S. at 573, 105 S.Ct. 1504). A district court’s factual findings may be clearly erroneous “where the court ... failed to synthesize the evidence in a manner that accounts for conflicting evidence or the gaps in a party’s evidentiary presentation^] ... incorrectly assessed the probative value of various pieces of evidence[; or] failed to weigh all of the relevant evidence before making its factual findings.” Id. at 164. DISCUSSION I. Clearly" }, { "docid": "12349478", "title": "", "text": "findings of fact and conclusions of law to be reviewed de novo by the district court.” Exec. Benefits Ins. Agency v. Arkison, — U.S -, 134 S.Ct. 2165, 2168, 189 L.Ed.2d 83 (2014). Because the bankruptcy court had the constitutional authority . to adjudicate the plaintiffs’ state-law claims, the court reviews the bankruptcy court’s conclusions of law de novo and findings of fact for clear error. See, e.g., In re Ahern Enters., Inc., 507 F.3d 817, 820 (5th Cir.2007). “[A] finding is ‘clearly erroneous’ when although there is evidence; to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” In re Renaissance Hosp. Grand Prairie Inc., 713 F.3d 285, 293 (5th Cir.2013) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). “This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently.” Id. “If the [trial] court’s account of the evidence is plausible in light of the record viewed in its entirety, the [reviewing] court ... may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 293-94 (alterations in original). “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id. at 294. “Factual findings based on determinations regarding the credibility of witnesses demand even greater deference because only the [bankruptcy] judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.” Id. at 293 (quotation marks omitted). Greater deference is owed to the bankruptcy court when it “was in a superior vantage point for findings facts.” See Hall v. Nat’l Gypsum Co., 105 F.3d 225, 228 (5th Cir.1997). To receive such deference, the testimony must be “coherent, internally consistent, and facially plausible” and “not contradicted by external" }, { "docid": "22451105", "title": "", "text": "instant case and its probative value was not substantially outweighed by any danger of unfair prejudice. Therefore, we conclude the district court did not abuse its discretion by admitting the evidence. IV. We turn now to the propriety and scope of the district court’s injunction. We review an order granting an injunction for abuse of discretion, reviewing factual findings for clear error and legal conclusions de novo. Muffley ex rel. N.L.R.B. v. Spartan Mining Co., 570 F.3d 534, 543 (4th Cir.2009) (citing E. Tenn. Natural Gas Co. v. Sage, 361 F.3d 808, 828 (4th Cir.2004)). As previously stated, a court “has abused its discretion if its decision is guided by erroneous legal principles or rests upon a clearly erroneous factual finding.” Brown v. Nucor Corp., 576 F.3d 149, 161 (4th Cir.2009). “[A] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (internal quotation omitted). “If the district court’s account of the evidence is plausible in light of the record reviewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 573-74, 105 S.Ct. 1504. Mead Johnson first argues that the district court abused its discretion by issuing an injunction because PBM failed to establish any risk of recurrence of the violation and because the mailer had been discontinued prior to trial. Second, Mead Johnson argues that even if the district court properly invoked its authority to enjoin Mead Johnson’s advertising claims, that the district court abused its discretion by enjoining conduct that is beyond the harm PBM sought to redress and proved at trial. We address each argument in turn. A. As noted above, a plaintiff asserting a false advertising claim under the Lanham Act must establish: (1) the defendant made a false or" }, { "docid": "6336500", "title": "", "text": "from exercising “its jurisdiction to adjudicate rights in [probated] property where the final judgment does not undertake to interfere with the state court’s possession”). In sum, the probate exception does not apply here because Plaintiffs: (i) sought “an in-personam judgment against [Defendants], not the probate or annulment of a ' will;” and (ii) did not “seek to reach a res in the custody of a state court.” Marshall, 547 U.S. at 311, 126 S.Ct. 1735. We therefore hold that the district court properly exercised subject matter jurisdiction over this dispute. II. Challenges to Liability A. Standard of Review On an appeal from a judgment entered after a bench trial, we review the district court’s legal conclusions de novo, and its factual findings for clear error. Moorer v. Baptist Mem. Health Care Sys., 398 F.3d 469, 478-79 (6th Cir. 2005); James v. Pirelli Armstrong Tire Corp., 305 F.3d 439, 448 (6th Cir. 2002); Schroyer v. Frankel, 197 F.3d 1170, 1173 (6th Cir. 1999). “A ‘finding is clearly erroneous when although there'is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” United States v. Atkins, 843 F.3d 625, 632 (6th Cir. 2016) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). “Under this standard, if ‘the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ” Id. (quoting Anderson, 470 U.S. at 573-74, 105 S.Ct. 1504). B. Statute of Limitations Kentucky has a five-year statute of limitations for breach of fiduciary duty claims. See Ky. Rev. Stat. § 413.120(2), (6). Neither party disputes that all of Defendants’ breaches of their fiduciary duties occurred in the 1980s and 1990s—more than five years before these consolidated lawsuits were filed in 2011 and 2013, respectively. However, Kentucky equitably tolls its statute of limitations" }, { "docid": "22294762", "title": "", "text": "review. A district court’s findings of fact following a bench trial will be set aside on appeal only if those findings are clearly erroneous. FDIC v. Providence College, 115 F.3d 136, 140 (2d Cir.1997) (citations omitted). Under the Supreme Court’s oft-quoted formulation, “factual findings by the district court will not be upset unless [the Court of Appeals is] ‘left with the definite and firm conviction that a mistake has been committed.’ ” Id. (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). “The Supreme Court instructs that ‘[i]f the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ” Donato v. Plainview-Old Bethpage Cent. School Dist., 96 F.3d 623, 634 (2d Cir.1996), cert. denied, — U.S.-, 117 S.Ct. 1083, 137 L.Ed.2d 218 (1997) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985)). “ ‘However, the district court’s application of th[e] facts to draw conclusions of law, including a finding of liability, is subject to de novo review.’,” Providence College, 115 F.3d at 140 (quoting Travellers Int’l A.G. v. Trans World Airlines, 41 F.3d 1570, 1575 (2d Cir.1994)). “So called mixed questions of law and fact are also reviewed de novo.” Id. This Court has not yet been squarely faced with the narrow issue of whether ERISA fiduciary status is strictly a factual issue subject to a clearly erroneous standard of review, a legal issue subject to de novo review, or a mixed question of law and fact, also subject to de novo review. Other Circuit Courts which have specifically addressed that issue have held, however, that “[t]he existence of a fiduciary relationship under ERISA, on the merits, is a mixed question of law and fact.” See, e.g., Kramer v. Smith Barney, 80 F.3d 1080, 1083 n. 2 (5th Cir.1996) (citing Reich v. Lancaster, 55 F.3d" }, { "docid": "11357755", "title": "", "text": "review governs this appeal. Defendant primarily seeks to demonstrate that the government’s race-neutral justifications for striking Mr. Dandridge were pretextual by showing that the government did not express the same concerns about similarly situated white venireper-sons who. ultimately served on the jury. This species of argument is often referred to as a comparative juror analysis, and we will use that term hereafter. Defendant argues that the appeal raises purely legal issues, and thus our review should be de novo. By contrast, the government argues that Defendant failed to offer a comparative juror analysis before the district court, and that plain error review should therefore apply. As we will explain, neither party is correct, and we hold that clear error review is appropriate. “On direct review” of a Batson challenge, “‘the trial court’s decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal’ and will not be overturned unless clearly erroneous.” Odeneal, 517 F.3d at 419 (quoting Hernandez v. New York, 500 U.S. 352, 364, 411 S.Ct. 1859, 114 L.Ed.2d 395 (1991) .(plurality opinion)). A “finding is ‘clearly erroneous’ when although there is evidence .to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). Under this standard, if “the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it- even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 573-74, 105 S.Ct. 1504. “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id. at 574, 105 S.Ct. 1504. “However, when ruling on alleged mistakes of law” in a Batson challenge, “the applicable standard of review" }, { "docid": "14691669", "title": "", "text": "re George E. Bumpus, Jr. Constr. Co., 226 B.R. 724 (1st Cir. BAP 1998). The panel may hear appeals from “final judgments, orders and decrees [pursuant to 28 U.S.C. § 158(a)(1)] or with leave of the court, from interlocutory orders and decrees [pursuant to 28 U.S.C. § 158(a)(3)].” Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). “A decision is final if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Id. at 646 (citations omitted). An order dismissing a Chapter 13 case is a final, appealable order. See Vicenty v. San Miguel Sandoval (In re San Miguel Sandoval), 327 B.R. 493, 505 (1st Cir. BAP 2005). STANDARD OF REVIEW Appellate courts generally apply the clearly erroneous standard to findings of fact and apply the de novo standard of review to conclusions of law. See T I Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir.1995); Western Auto Supply Co. v. Savage Arms, Inc. (In re Savage Indus., Inc.), 43 F.3d 714, 719-20 n. 8 (1st Cir. 1994). A bankruptcy court’s determination of a debtor’s intent is a factual finding subject to review for clear error. Gannett v. Carp (In re Carp), 340 F.3d 15, 25 (1st Cir .2003). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Cabral v. Shamban (In re Cabral), 285 B.R. 563, 571 (1st Cir. BAP 2002); Gray v. Travelers Ins. Co. (In re Neponset River Paper Co.), 231 B.R. 829, 830 (1st Cir. BAP 1999). If the trial court’s account of the evidence is plausible in light of the record reviewed in its entirety, a reviewing court may not reverse even if convinced that it would have weighed the evidence differently as a trier of fact. Anderson, 470 U.S. at 574, 105 S.Ct." }, { "docid": "16904634", "title": "", "text": "305, 307 (9th Cir.1994); accord United States v. Gormley, 201 F.3d 290, 294 (4th Cir.2000) (“[T]he question of willfulness is essentially a finding of fact.”). We review factual findings under the clearly erroneous standard set forth in Federal Rule of Civil Procedure 52(a). Walton v. Johnson, 440 F.3d 160, 173-74 (4th Cir.2006) (en banc). “Our scope of review is narrow; we do not exercise de novo review of factual findings or substitute our version of the facts for that found by the district court.” Id. at 17B. “If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). However, notwithstanding our circumscribed review or the deference we give to a district court’s findings, those findings are not conclusive if they are “plainly wrong.” Id. (quoting Jiminez v. Mary Washington College, 57 F.3d 369, 379 (4th Cir.1995)). The clear error standard still requires us to engage in “meaningful appellate review,” United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir.2008), and where objective evidence contradicts a witness’ story, or the story itself is “so internally inconsistent or implausible on its face that a reasonable fact-finder would not credit it, ... the court of appeals may well find clear error even in a finding purportedly based on a credibility determination.” United States v. Hall, 664 F.3d 456, 462 (4th Cir.2012) (citing Anderson, 470 U.S. at 575, 105 S.Ct. 1504). Thus, “[a] finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” F.C. Wheat Maritime Corp. v. United States, 663 F.3d 714, 723 (4th Cir.2011). Here, the evidence as a whole leaves us with a definite and firm conviction that the district court clearly" }, { "docid": "23506361", "title": "", "text": "rule of Fed.R.Civ.P. 52(a) with respect to the trial court’s underlying factual findings and factual inferences. Id. We reviewed de novo the legal conclusion reached by the district court, based upon the facts and inferences, that the plaintiffs were “employees” within the meaning of the Act. Id. We therefore hold that the question whether Lancaster and JDL are ERISA fiduciaries is a mixed question of fact and law. We will review the factual components of the district court’s determination— the underlying factual findings and the inferences drawn therefrom — for clear error. Rule 52(a) provides that “[fjindings of fact ... shall not be set aside unless clearly erroneous.” “A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” Cupit v. McClanahan Contractors, 1 F.3d 346, 348 (5th Cir.), cert. denied, — U.S. -, 114 S.Ct. 1058, 127 L.Ed.2d 378 (1993). “If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). “[T]his court does not find facts. Neither is it free to view the evidence differently as a matter of choice.” In re Placid Oil Co., 158 B.R. 404, 412 (N.D.Tex.1993). “We are not permitted to re-weigh the evidence on appeal simply because we disagree with the choices made by the district court.” E.E.O.C. v. Clear Lake Dodge, 25 F.3d 265, 270 (5th Cir.1994) (citing Anderson, 470 U.S. at 573-74, 105 S.Ct. at 1511-12). Rule 52(a) also requires that we give due regard to the opportunity of the trial court to judge the credibility of the witnesses. The trial judge’s “unique perspective to evaluate the witnesses and to consider the entire context of the evidence, must be respected.” Endrex Exploration Co." }, { "docid": "15927503", "title": "", "text": "an order denying the Trustee’s Motion to Strike, allowing the transcript to remain a part of the appellate record. STANDARD OF REVIEW Appellate courts reviewing an appeal from the Bankruptcy Court generally apply the clearly erroneous standard to findings of fact and de novo review to conclusions of law. See T I Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir.1995); Western Auto Supply Co. v. Savage Arms, Inc. (In re Savage Indus., Inc.), 43 F.3d 714, 719-20 n. 8 (1st Cir.1994). A bankruptcy court’s decision to dismiss or convert a case under § 1307(c) is reviewed for an abuse of discretion. See Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1222-23 (9th Cir.1999); see also Ho v. Dowell (In re Ho), 274 B.R. 867, 870-71 (9th Cir. BAP 2002). A court abuses its. discretion if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of material fact. Ho v. Dowell, 274 B.R. at 871. A finding of bad faith, as a basis for granting a motion to convert or dismiss under § 1307(c), is reviewed for clear error. Leavitt, 171 F.3d at 1223. The clearly erroneous standard requires this Panel to give great deference to the Bankruptcy Court as the trier of fact. Under this standard, a finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); see also Gray v. Travelers Ins. Co. (In re Neponset River Paper Co.), 231 B.R. 829, 830 (1st Cir. BAP 1999). If the trial court’s account of the evidence is plausible in light of the record reviewed in its entirety, a reviewing court may not reverse even if convinced that it would have weighed the evidence differently as a trier of fact. Anderson, 470 U.S. at 574, 105 S.Ct. 1504. JURISDICTION The bankruptcy appellate panel has jurisdiction to hear appeals from “final" }, { "docid": "16143826", "title": "", "text": "A. The Majority Applies the Wrong Standard of Review for Factual Findings By applying the wrong standard of review, the Majority abandons its role as a court of appellate review and plays the role of the trier of fact. I cannot join this flawed approach. “On an appeal from a judgment entered after a bench trial, [this court] review[s] the district court’s ... conclusions of law de novo.” Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 492 (6th Cir. 2005). “Mixed questions of law and fact are also subject to de novo review.” T. Marzetti Co. v. Roskam Baking Co., 680 F.3d 629, 633 (6th Cir. 2012) (citing Thoroughbred Software Int’l, Inc. v. Dice Corp., 488 F.3d 352, 358 (6th Cir. 2007)). A district court’s findings of fact are reviewed for clear error. Lindstrom, 424 F.3d at 492. “A finding of fact will only be clearly erroneous when, although there may be some evidence to support the finding, ‘the reviewing court on the entire evidence is left with the definite and firm conviction that-a mistake has been committed.’” Roskam Baking Co., 680 F.3d at 633 (quoting United States v. Darwich, 337 F.3d 645, 663 (6th Cir. 2003)). “If the district court’s account of the evidence is plausible in light of the entire record, this court may not reverse that accounting, even if convinced that, had it been sitting as trier of fact, it would have weighed the evidence differently.” Id. (quoting Harlamert v. World Finer Foods, Inc., 489 F.3d 767, 771 (6th Cir. 2007)). “This is so- even when the district- court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts.” Id. (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). “In reviewing factual findings for clear error, ‘the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.’” Calloway v. Caraco Pharm. Labs., Ltd., 800 F.3d 244, 251 (6th Cir. 2015) (quoting Fed. R. Civ. P. 52(a)(6)). “[This court] cannot find" }, { "docid": "22916739", "title": "", "text": "Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 810 n. 7 (4th Cir.1992) (same). On appeal, we review the district court’s factual findings for clear error and its legal conclusions de novo. See Fed. R.Civ.P. 52(a)(6); United States v. White, 620 F.3d 401, 410 (4th Cir.2010); United States v. Cox, 964 F.2d 1431, 1433 (4th Cir.1992). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Easley v. Cromartie, 532 U.S. 234, 242, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001) (internal quotation marks omit ted). “This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently.” Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). “If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 573-74, 105 S.Ct. 1504. “When findings are based on determinations regarding the credibility of witnesses,” we give “even greater deference to the trial court’s findings.” Id. at 575, 105 S.Ct. 1504. [0]nly the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said. This is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness’ story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder" }, { "docid": "22629973", "title": "", "text": "When we review a district court’s decision de novo, we take note of it, and study the reasoning on which it is based. However, our review is independent and plenary; as the Latin term suggests, we look at the matter anew, as though it had come to the courts for the first time. See Black’s Law Diotionaey 435 (6th ed.1990) (defining “de novo” as “[a]new” and “afresh”). “Clear error” is the standard under which appellate courts review a district court’s factual findings. See Ornelas v. United States, 517 U.S. 690, 694 n. 3, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (“ ‘Clear error’ is a term of art derived from Rule 52(a) of the Federal Rules of Civil Procedure, and applies when reviewing questions of fact.”). It is a deferential standard of review grounded, inter alia, on the belief that district courts have a good deal of “expertise” when it comes to fact-finding. Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); accord City of Bessemer City, 470 U.S. at 573-74, 105 S.Ct. 1504 (“If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.”). Finally, there is abuse-of-discretion review. This is a second, more complicated, species of deferential appellate review. When a district court is vested with discretion as to a certain matter, it is not required by law to make a particular decision. Rather, the district court is empowered to make a decision —" }, { "docid": "8829453", "title": "", "text": "rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” Hydrogen Peroxide, 552 F.3d at 312 (citation and quotations omitted). We review de novo whether an incorrect legal standard has been used. Id. (citation omitted). For a district court’s finding of fact to be clearly erroneous, the standard is high. “Clearly erroneous” has been interpreted to mean that a reviewing court can upset a finding of fact, even if there is some evidence to support the finding, only if the court is “left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). This means that “[i]t is the responsibility of an appellate court to accept the ultimate factual determination of the fact-finder unless that determination either (1) is completely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no rational relationship to the supportive evidentiary data.” Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir.1972). Especially pertinent to the issue before us, the Supreme Court has explained: This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently.... In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo. If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. Anderson v. Bessemer City, 470 U.S. 564, 573-574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (quotations and citations omitted); accord PA Prison Soc’y v. Cortes, 622 F.3d" }, { "docid": "2807541", "title": "", "text": "district court that La Resolana has not established copying as a factual matter. As a result, and for the reasons noted below, La Resolana cannot prevail on this appeal. “In an appeal from a bench trial, we review the district court’s factual findings for clear error and its legal conclusions de novo.” Keys Youth Servs., Inc. v. City of Olathe, Kan., 248 F.3d 1267, 1274 (10th Cir.2001). “Findings of fact are clearly erroneous when they are unsupported in the record, or if after our review of the record we have the definite and firm conviction that a mistake has been made.” Transwestern Publ’g Co. v. Multimedia Mktg. Assocs., Inc., 133 F.3d 773, 775 (10th Cir.1998) (internal quotation marks omitted). “If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). This admonition applies equally regardless of whether the district court’s factual findings are based on credibility determinations or on documentary evidence. Id. at 574, 105 S.Ct. 1504 (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts.” (citation omitted)). A. Copyright Infringement There are two elements to a copyright infringement claim: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). The plaintiff bears the burden of proof on both elements. Palladium Music, Inc. v. Eat-SleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir.2005). Because Reno, Inc. and SWIT do not challenge the validity of La Resolana’s copyright, we address only the second" }, { "docid": "7670458", "title": "", "text": "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. Fed.R.Civ.P. 52(a). Clear error is a highly deferential standard of review. See, e.g., Manning, 244 F.3d at 940. As the Supreme Court has explained, a “finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573,105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). “This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. ‘In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.’ Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier, of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id. at 573-74, 105 S.Ct. 1504. The Plaintiffs first challenge the district court’s finding that the District has taken all practicable steps to eliminate the vestiges of de jure segregation. They say that the district court’s finding that demographics were the substantial cause of" }, { "docid": "17154788", "title": "", "text": "steps to be taken in order to enable the court to adjudicate the cause on the merits.’ ” Id. (quoting In re American Colonial Broad. Corp., 758 F.2d 794, 801 (1st Cir.1985)). A bankruptcy appellate panel is duty-bound to determine its jurisdiction before proceeding to the merits even if not raised by the litigants. See In re George E. Bumpus, Jr. Constr. Co., 226 B.R. 724 (1st Cir. BAP 1998). An order imposing Rule 9011 sanctions is final when the matter out of which it arose becomes final. 10 Lawrence P. King, Collier on Bankruptcy, ¶ 9011.10 (15th ed. rev.2004). Here, the sanction order arose out of the Appellant’s Motion to Disgorge, which became final when the court denied the motion. See Bank of New England, 218 B.R. at 645. STANDARD OF REVIEW We review the bankruptcy court’s conclusions of law de novo, and findings of fact for clear error. See T I Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir.1995); Western Auto Supply Co. v. Savage Arms, Inc. (In re Savage Indus., Inc.), 43 F.3d 714, 719-20, n. 8 (1st Cir.1994). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Cabral v. Shamban (In re Cabral), 285 B.R. 563, 571 (1st Cir. BAP 2002); Gray v. Travelers Ins. Co. (In re Neponset River Paper Co.), 231 B.R. 829, 830 (1st Cir. BAP 1999). If the trial court’s account of the evidence is plausible in light of the record reviewed in its entirety, a reviewing court may not reverse even if convinced that it would have weighed the evidence differently as a trier of fact. Anderson, 470 U.S. at 574, 105 S.Ct. 1504. We review the bankruptcy court’s decision to impose Rule 9011 sanctions and fine the Appellant $2,500 for manifest abuse of discretion. See Fed. R. Bankr.P. 9011(b); 1095 Commonwealth Corp. v. Citizens Bank of Mass." }, { "docid": "11179314", "title": "", "text": "410 (3d Cir.2003). Under that standard, we review determinations of law de novo, but a court’s factual findings regarding domicile or citizenship are reviewed for clear error. McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir.2006); When reviewing for clear error, an appellate court “must accept the trial court’s findings” unless it is “left with the definite and firm conviction that a mistake has been committed.” Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982) (internal quotation marks omitted); see also Frett-Smith v. Vanterpool, 511 F.3d 396, 399 (3d Cir.2008) (applying that standard to the factual findings which underpin a court’s determination of diversity jurisdiction). Put another way, “[i]f the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Plaintiffs argue that it would be unfair to apply the clearly erroneous standard to the factual findings in this case because of the contrary outcomes reached by different district judges on this jurisdictional issue. But varying outcomes do not change that we are called upon to review only the particular order on appeal, nor do they put us in a better position to make our own factual findings. See Inwood Labs., 456 U.S. at 855, 102 S.Ct. 2182 (recognizing the “unique opportunity afforded the trial court judge to evaluate the credibility of witnesses. and to weigh the evidence”). Rule 52(a) of the Federal Rules of Civil Procedure makes clear that “[fjindings of fact ... must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” Fed.R.Civ.P. 52(a)(6). The Supreme Court has held that that standard applies “even when the district court’s findings do not rest on credibility determinations, but are based instead" }, { "docid": "11357756", "title": "", "text": "411 S.Ct. 1859, 114 L.Ed.2d 395 (1991) .(plurality opinion)). A “finding is ‘clearly erroneous’ when although there is evidence .to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). Under this standard, if “the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it- even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 573-74, 105 S.Ct. 1504. “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id. at 574, 105 S.Ct. 1504. “However, when ruling on alleged mistakes of law” in a Batson challenge, “the applicable standard of review is essentially de novo.” United States v. Cecil, 615 F.3d 678, 686 (6th Cir. 2010); see also United States v. Kimbrel, 532 F.3d 461, 465-66 (6th Cir. 2008) (“Because this argument concerns an alleged mistake of law, it makes no difference whether we review this Batson challenge for clear error ... or review it de novo. In either event,- a mistake of law genei’ally satisfies dear-error, de-novo or for that matter abuse-of-discretion review.”). When a party fails to raise an argument before the district court, the argument may generally only be reviewed for plain error on appeal. Fed. R. Crim. P. 52(b). The Supreme Court has explained that plain error review “involves four steps.” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). “First, there must be an error or defect — some sort of ‘[deviation from a legal rule’ — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the-appellant.” Id. (alteration in original) (quoting United States v. Olano, 507 U.S. 725, 732-33, 113 S.Ct." } ]

[ { "docid": "19191721", "title": "", "text": "on a different cause of action involv ing a party to the prior litigation.” United States v. Mendoza, 464 U.S. 154, 158, 104 S.Ct. 568, 571, 78 L.Ed.2d 379 (1984). Determining the person who made the overpayment was not necessary to the Tax Court’s judgment that there was an overpayment. III. This Court is now faced with the task of determining whether Essiy Fink, deceased, was the person who made the overpayment within the meaning of Internal Revenue Code Section 6402(a). If so, then the plaintiff, Estate of Essiy Fink, is entitled to the refund of the overpayment in tax. The recent case of Bruce v. United States, 759 F.2d 755 (9th Cir.1985) discussed the meaning of “the person who made the overpayment” under Section 6402(a). The government relies mainly on that case and Scanlon v. United States, 330 F.Supp. 269 (E.D.Mich.1971). In Bruce, the IRS issued a notice of deficiency to the taxpayer after the IRS had disallowed deductions taken by the taxpayer for certain partnership losses. The taxpayer’s tax advisor, Harry Margolis, paid the taxes and interest pursuant to an agreement whereby the taxpayer would have to repay the monies only if he were able to obtain a refund. The taxpayer later commenced a suit for refund of the amounts paid by Margolis. The Ninth Circuit affirmed the district court which had found that the taxpayer was not the person who made the overpayment and, therefore, lacked standing to sue. In Scanlon, plaintiff filed a suit for refund of income tax withholding and social security taxes which had been assessed against him. The taxes had been paid by the plaintiff’s employer pursuant to an agreement whereby the employer assumed liability for the tax. Concluding that Section 6402(a) was specific in limiting the refund of overpayments to the “person who made the overpayment”, the district court held that the plaintiff lacked standing to sue for a refund, even though he was the person assessed. The plaintiff counters with Morse v. United States, 494 F.2d 876 (9th Cir.1974) (where an unknown person paid income tax assessed against the plaintiff); Cindy’s" } ]

[ { "docid": "8859975", "title": "", "text": "that states “transgress the limits of state power” when they attempt to set limitations periods on claims acquired by the United States in its governmental capacity. Our decision today makes clear the imper-missibility of such an attempt. V. CONCLUSION The Tax Court did not err in holding the CUFTA’s claim-extinguishment provision inapplicable to the IRS. AFFIRMED. . The relevant Tacts in this case are not in dispute. They are summarized in the opinion of the Tax Court at 111 T.C. 172, 173-78, 1998 WL 485464 (1998). . Twelve judges on the Tax Court joined the author of the majority opinion. Four judges dissented. . Title 26 U.S.C. § 6901(a)(1)(A) provides that the IRS may assess and collect a transferee’s legal and equitable liabilities when those liabilities were incurred in connection with the tax liability of the transferor. . See Coca-Cola Bottling Co. v. Commissioner, 37 T.C. 1006, 1962 WL 1214 (1962), aff'd, 334 F.2d 875, 877 (9th Cir.1964); Mysse v. Com missioner, 57 T.C. 680, 700-01, 1972 WL 2536 (1972). . See Commissioner v. Stern, 357 U.S. 39, 45, 78 S.Ct. 1047, 2 L.Ed.2d 1126 (1958); Hagaman v. Commissioner, 100 T.C. 180, 183-85, 1993 WL 69243 (1993); Gumm v. Commissioner, 93 T.C. 475, 479-80, 1989 WL 118714, aff'd, 933 F.2d 1014 (9th Cir.1991). . Section 3439.09(b) of the CUFTA provides: A cause of action with respect to a fraudulent transfer or obligation under this chapter is extinguished .. .■: (b) under subdivision (b) of Section 3439.04 or Section 3439.05, within four years after the transfer was made or the obligation was incurred. . Section 6901(c) sets a federal limitations period within which the rights of the IRS under that section must be exercised. It provides that the Commissioner may assess a transferee for taxes owed by the transferor within one' year after the expiration of the period of limitations for assessment against the transferor. Under Section 6501, the period of limitations for assessments against a taxpayer is generally three years from the filing of the tax return. In this case Jaussaud filed its federal corporate income tax return for the" }, { "docid": "3470852", "title": "", "text": "the debtor, Internal Revenue Service, and other creditors. Should the bankruptcy court conclude that the interests of all parties would be best served by allowing the debtor to allocate the payment of taxes, then that determination should stand in the absence of abuse of discretion. Accordingly, we REMAND to the district court for further proceedings consistent with this opinion. . “Trust fund\" taxes consist of social security and federal income taxes withheld by an employer from the wages of the employees. See 26 U.S.C. § 3102 (1982) (placing duty of collection upon employer). These funds are to be held in a special trust for the United States. 26 U.S.C. § 7501 (1982). The Internal Revenue Code imposes personal liability on responsible corporate officers who fail to remit these funds to the government. 26 U.S.C. § 6672 (1982). . Ten courts have found tax payments made pursuant to a bankruptcy plan to be involuntary. In re Frost, 47 B.R. 961 (D.Kan.1985); In re Mister Marvins, Inc., 48 B.R. 279 (E.D.Mich.1984); Avildsen v. United States, (In re Avildsen), 40 B.R. 253 (N.D.Ill.1984), aff’d, 794 F.2d 1248 (7th Cir.1986); In re Herald, 66 B.R. 169 (Bankr.E.D.N.C.1986); In re Tam Specialty Co., 57 B.R. 37 (Bankr.N.D.Cal.1985); In re Office Dynamics, Inc., 39 B.R. 760 (Bankr.N.D.Ga. 1984); In re Obie Elie Wrecking Co., 35 B.R. 114 (Bankr.N.D.Ohio 1983); Hannan Trucking, Inc. v. United States (In re Hannan Trucking, Inc.), 17 B.R. 475 (Bankr.N.D.Tex.1981); Hubler v. Gutman (In re Hubler Rentals, Inc.), 79-2 U.S.Tax Cas. (CCH) ¶9621 (Bankr.E.D.Pa.1979); In re Vincent-McCall Co., 68-2 U.S.Tax.Cas. (CCH) ¶ 9591 (Bankr.E.D.Wis.1968). Six decisions have found payments made pursuant to a Chapter 11 reorganization to be voluntary. Tom LeDuc Enter. v. United States (In re Tom LeDuc Enter.), 47 B.R. 900 (W.D.Mo.1984); In re Energy Resources Co., 59 B.R. 702 (Bankr.D.Mass.1986); Hineline v. Household Finance Corp. (In re Hineline), 57 B.R. 248 (Bankr.W.D. Ohio 1986); In re Lifescape, Inc., 54 B.R. 526 (Bankr.D.Colo.1985); In re Franklin Press, Inc., 52 B.R. 151 (Bankr.S.D.Fla.1985); In re Hartley Plumbing Co., 32 B.R. 8 (Bankr.M.D.Ala.1983). . The conflicting goals of tax collection and rehabilitation" }, { "docid": "14569379", "title": "", "text": "173 Ct.Cl. 881 (1965); Moskowitz v. United States, 285 F.2d 451, 152 Ct.Cl. 412 (1961); Richardson v. Smith, 301 F.2d 305 (3d Cir.1962); Hill v. United States, 263 F.2d 885 (3d Cir.1959); Rose v. United States, 256 F.2d 223 (3d Cir.1958); Binder, supra. . Colt’s Manufacturing Co. v. Commissioner, 306 F.2d 929 (2d Cir.1962); Ewing v. United States, 914 F.2d 499 (4th Cir.1990); Ameel v. United States, 426 F.2d 1270 (6th Cir.1970); United States v. Miller, 315 F.2d 354 (10th Cir.1963). . Thomas v. Mercantile Nat’l Bank at Dallas, 204 F.2d 943 (5th Cir.1953); Ford, Jr., et al. v. United States, 618 F.2d 357 (5th Cir.1980); Plankinton v. United States, 267 F.2d 278 (7th Cir.1959); United States v. Dubuque Packing Co., 233 F.2d 453 (8th Cir.1956); Estate of Goetz v. United States, 286 F.Supp. 128 (W.D.Mo.1968). . The statute involved in Rosenman was 25 U.S.C. § 910 (1939). That provision is now 26 U.S.C. § 6511(a) (1990). 26 U.S.C. § 6511(b)(2)(A) was amended in 1958 to reflect its current language. . § 322(b)(1) provides that no refund shall be allowed or made unless the claim for refund is filed by the taxpayer (1) within three years from the time the return was filed by the taxpayer or (2) within two years from the time the tax was paid, whichever expires later. . As mentioned previously, in many jurisdiction that follow a relaxed interpretation of Rosenman, the date on which the tax returns were filed by the conservator (December 22, 1986) would be the first defining date of tax liability since the remitted funds would be clearly established as payments for the first time by the taxpayer. . Ethel Multzman was diagnosed as suffering from senile psychosis in 1985. In 1987, Mrs. Multzman and her adult son were adjudicated incompetents. The plaintiff was appointed Committee of the Person and Property of Mrs. Multzman in 1987. As soon as she discovered that a prepared 1983 return had never been filed, she immediately filed an administrative claim for a refund of excess payments made during 1983 which was denied. The court held that" }, { "docid": "2248185", "title": "", "text": "v. Riddell, 273 F.2d 649, 658-59 (9th Cir.1959), cert. denied, 364 U.S. 835, 81 S.Ct. 52, 5 L.Ed.2d 60 (1960). We perceive no violation of Mary Oliver’s due process rights. IV The Olivers next assert that the district court erred in denying their motion for attorney fees under the EAJA. The government, however, argues that the appropriate authority for awarding attorney fees in this case is found under 26 U.S.C. § 7430 and not the EAJA. Section 7430 applies to civil tax actions or proceedings commenced after February 28, 1983. Powell v. Commissioner, 791 F.2d 385, 389 (5th Cir.1986) (citing Tax Equity and Fiscal Responsibility Act of 1982, Pub.L. No. 97-248, § 292(e)(1), 96 Stat. 324, 574.) The government contends that section 7430 applies because the Olivers’ refund suit was filed on September 6, 1984. The Olivers, however, argue that their action commenced no later than February 24, 1983, when the IRS notified the Olivers that the assessments against them were on appeal. We need not resolve this issue because under either section 7430 or the EAJA, the district court did not err in denying the Olivers’ motion for attorney fees. There is little dispositive difference between section 7430 and the EAJA. To be entitled to receive an award for attorney fees under section 7430, the taxpayer in this action must be a “prevailing party.” 26 U.S.C. § 7430(e)(2) (1982) (current version at 26 U.S.C. § 7430(c)(4) (1988)). Such a prevailing party is defined by section 7430 as one “who has substantially prevailed with respect to the amount in controversy\" or “has substantially prevailed with respect to the most significant issue or set of issues presented.” Id. § 7430(c)(2)(A)(ii). Moreover, a prevailing party may be awarded attorney fees under section 7430 only if the party shows that the position of the United States was “unreasonable.” Id. § 7430(c)(2)(A)(i). Similarly, under the EAJA, the plaintiff must be a prevailing party in order to be entitled to attorney fees. 28 U.S.C. § 2412(d)(1)(A) (1988); see also Greater Los Angeles Council on Deafness v. Community Television, 813 F.2d 217, 220 (9th Cir.1987). Additionally," }, { "docid": "331430", "title": "", "text": "for Averna’s liabilities, and Mayors timely appealed to this court. See Fed.R. Civ.P. 13; 26 U.S.C. § 7482(a) (1982). DISCUSSION We review decisions of the United States Tax Court on the same basis as decisions in civil bench trials in United States District Courts. Commissioner v. Duberstein, 363 U.S. 278, 290-91, 80 S.Ct. 1190, 1199, 4 L.Ed.2d 1218 (1960). Factual findings are reviewed under the “clearly erroneous” standard. Id.; Fed.R.Civ.P. 52(a). Mixed questions of law and fact that require the consideration of legal concepts and involve the exercise of judgment about the values underlying legal principles are reviewable de novo. United States v. McConney, 728 F.2d 1195, 1199-1204 (9th Cir.1984) (en banc), cert. denied, — U.S. -, 105 S.Ct. 101, 83 L.Ed.2d 46 (1985). I. 26 U.S.C. § 6901(a) provides a procedure for the collection of an existing tax liability of the transferor of an asset from the transferee. This provision is intended to prevent taxpayers from avoiding payment of taxes through transfer of assets that the Internal Revenue Service could otherwise attach to satisfy tax deficiencies. State law governs the actual liability of a transferee under this section. Commissioner v. Steam, 357 U.S. 39, 42-45, 78 S.Ct. 1047, 1049-51, 2 L.Ed.2d 1126 (1958). Both parties agree that California law applies in this case. See John Ownbey Co. v. Commissioner, 645 F.2d 540, 543 (6th Cir.1981). Liability under California law is governed by Cal. Civ. Code Ann. § 3439.04 (West 1970): Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to other creditors without regard to his actual intent if the conveyance is made or the obligation is incurred without a fair consideration. A conveyance fraudulent as to creditors may be set aside. E.g., Headen v. Miller, 141 Cal.App.3d 169, 172, 190 Cal.Rptr. 198, 200 (1983). The Commissioner has the burden of proving liability of a transferee, 26 U.S.C. § 6902(a) (1982), in this case by making out a prima facie case of fraudulent conveyance. Under California law, a prima facie case of fraudulent conveyance is made out" }, { "docid": "3097874", "title": "", "text": "1360, 1364 (9th Cir.1996) (“Hollowing Lundy, we hold that § 6511(b)(2)(A) is jurisdictional”). See also Oropallo v. United States, 994 F.2d 25, 30 (1st Cir.1993) (Breyer, J.). 10. In the instant case, defendant does not dispute the timeliness of plaintiffs claim for refund or credit for tax year 1996 for purposes of 26 U.S.C. § 6511(a). Defendant, however, contends that the amount of plaintiffs recoverable refund or credit is limited to $0.00, based upon the application of 26 U.S.C. § 6511(b)(2)(A). Ability of IRS to Authorize Tax Refunds 11. Section 6402(a) generally provides that the IRS is not authorized to issue a tax refund unless and until the taxpayer has overpaid his taxes. The IRS cannot allow or make a credit or refund of an overpayment unless the taxpayer has filed a claim therefor before expiration of the applicable statute of limitations — 26 U.S.C. § 6511. See Treas. Reg. § 301.6402-2(a) — 1. 12. 26 U.S.C. § 6402(b) allows the taxpayer to make an election claiming an overpayment as a credit against his estimated tax for the succeeding taxable year. Section 6402(b) similarly is subject to the requirement that any claim for credit or refund must be filed within the limitations period specified by 26 U.S.C. § 6511. See Burr v. Commissioner, 2002 WL 459233, T.C. Memo.2002-69 (U.S.Tax Ct.2002) (tax overpayment for one year could not be credited against estimated tax for subsequent year, where taxpayer did not claim credit for overpayment within applicable statute of limitations, 26 U.S.C. §§ 6511(a) and 6511(b)(2)(B)); Stephenson v. Commissioner of Internal Revenue, 1995 WL 27093 (U.S.Tax Ct.), T.C. Memo.1995-33 (“An overpayment may not be credited against estimated tax for a subsequent taxable year, unless the claim for credit itself was filed within the statutory period set forth in section 6511”). Deemed Payment Date of Estimated Income Taxes and Overpayment Credit Transfers for Tax Refund Purposes 13. Pursuant to 26 U.S.C. § 6513(b), remittances of estimated income taxes and income taxes withheld from a taxpayer’s wages during the calendar year are deemed paid, for tax refund purposes, on the date the return is" }, { "docid": "22197345", "title": "", "text": "in fact is subsequently guised under a claim of ignorance.” We read Powell to mean that disclosed defiance, standing alone, would not bar a finding of fraud. Fraud under section 6653 is “intentional wrongdoing on the part of the taxpayer with the specific intent to avoid a tax known to be owing.” Akland, 767 F.2d at 621 (citing Conforte v. Commissioner, 692 F.2d 587, 592 (9th Cir.1982)). This definition does not require that the taxpayer hide. his defiance from the IRS. Whether or not Edelson disclosed his willful refusal to file is therefore irrelevant to the tax court’s finding of fraud and this finding is not clearly erroneous. D. Transferee Liability We review findings of fact under the clearly erroneous standard. Mayors v. Commissioner, 785 F.2d 757, 759 (9th Cir. 1986). Under New Jersey law, the determination of whether there has been a fraudulent conveyance is a question of fact. Coles v. Osback, 22 N.J.Super.Ct. 358, 92 A.2d 35, 40 (1952), cert, denied, 11 N.J. 330, 94 A.2d 549 (1953). Internal Revenue Code § 6901(a) provides a procedure for the collection of an existing tax liability when a taxpayer transfers his assets to a transferee. Mayors, 785 F.2d at 759. State law, however, determines whether the transferee is liable under section 6901(a) for the transferor’s taxes. Commissioner v. Stem, 357 U.S. 39, 42-45, 78 S.Ct. 1047, 1049-51, 2 L.Ed.2d 1126 (1958); Mayors, 785 F.2d at 759. The Commissioner has the burden of proving transferee liability by making a prima facie case of a fraudulent conveyance. Id. at 760; 26 U.S.C. § 6902(a); Tax Ct.R. 142(b). In this case, New Jersey law governs transferee liability. Pursuant to N.J.S.A. 25:2-13, “[e]very 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.” Equity will infer actual intent when the circumstances surrounding the transaction present the inescapable inference that the conveyance was made to frustrate a claim. See Green v. Carroll, 116 N.J.Eq. 1,172 A. 202 (1934). Indicia of fraudulent transfer recognized" }, { "docid": "20594034", "title": "", "text": "liquidating distribution.” The tax court concluded that the form of the stock sale between the shareholders and Berlinetta should be respected, and therefore rejected the IRS’s theory that the shareholders were liable for taxes, interest, and penalties arising from Slone Broadcasting’s sale of its assets. The Commissioner timely appealed. II We have jurisdiction over this appeal under I.R.C. § 7482(a)(1). We review a tax court’s factual determinations for clear error and its application of legal standards de novo. See Sacks v. Comm’r, 69 F.3d 982, 986 (9th Cir.1995). Because a tax court must apply the correct legal standards when it characterizes a transaction for tax purposes, see id,.', we reject the shareholders’ argument that such a characterization raises only questions of fact. A The question before us is whether the Slone Broadcasting shareholders can be held liable for taxes on Slone Broadcasting’s sale of assets to Citadel because the shareholders were “transferees” of the proceeds of that sale. Under 26 U.S.C. § 6901, the Commissioner can assess tax liability against a taxpayer who is “the transferee of assets of a taxpayer who owes income tax.” Sa-lus Mundi Found. v. Comm’r, 776 F.3d 1010, 1017 (9th Cir.2014). Tax liabilities on transferred assets shall, with certain exceptions, be “assessed, paid, and collected in the same manner and subject to the same provisions and limitations as in the cases of taxes with respect to which the liabilities were incurred.” 26 U.S.C. § 6901. While federal law provides the procedure for collecting tax liabilities from a transferee, state law answers the question whether the alleged transferee is substantively liable for the tax. Comm’r v. Stern, 357 U.S. 39, 44-45, 78 S.Ct. 1047, 2 L.Ed.2d 1126 (1958). Therefore, in order to impose tax liability on a transferee, a court must engage in a two-pronged inquiry, see Salus Mundi, 776 F.3d at 1018 (citing Stern, 357 U.S. at 42, 44-45, 78 S.Ct. 1047), which is sometimes called the Stem test. The first prong asks: “is the party a ‘transferee’ under § 6901 and federal tax law?” Id. Under federal law, a “transferee” is defined as including" }, { "docid": "3097889", "title": "", "text": "See Gouin v. United States, 1988 WL 126566, 62 A.F.T.R.2d 88-5654, 88-2 USTC ¶ 9534 (D.Mass.1988) (court rejected taxpayers’ argument that they were entitled to credit for excess taxes withheld from wages on theory that such sums constituted “deposits” that could be applied to their liability for previous tax year, since they did not make any payments within 3-year period immediately preceding filing of belated return claiming refund). The Doctrine of Equitable Estoppel Cannot be Used to Extend or Toll the Time to File a Tax Refund Claim 35. In Brockamp, 519 U.S. 347, 117 S.Ct. 849, 136 L.Ed.2d 818, the Supreme Court addressed the following specific issue: “Can courts toll, for nonstatutory equitable reasons, the statutory time (and related amount) limitations for filing tax refund claims set forth in § 6511 of the Internal Revenue Code of 1986?” Id. at 348, 519 U.S. 347, 117 S.Ct. 849, 136 L.Ed.2d 818. The Court answered that question “no” because Congress did not intend equitable doctrines to apply to the time limits of 26 U.S.C. § 6511. 36. The equitable estoppel argument made by plaintiff herein is similar to the equitable tolling claim at issue in Brock-amp. 37. In cases decided subsequent to Brockamp, the courts uniformly have held that equitable principles, including the doctrine of equitable estoppel, cannot toll statutes of limitation in tax refund suits. See RHI Holdings, Inc. v. United States, 142 F.3d 1459 (Fed.Cir.1998) (applying Brockamp and finding that two year limitations period for tax refund claims when taxpayer files waiver of notice of disallowance, 26 U.S.C. § 6532(a)(3), does not contain implied exception that would allow United States to be estopped from asserting statute of limitations); Thomasson v. United States, 1997 WL 220321, *4, 79 A.F.T.R.2d (RIA) 97-2678, 97-1 U.S.T.C. (CCH) ¶ 50,430 (N.D.Cal.1997) (court dismissed refund suit, as untimely filed, although IRS agents erroneously informed taxpayer’s accountant during 2-year period for filing suit, 26 U.S.C. § 6532(a)(1), that IRS would issue refund to taxpayer although exact amount had not been determined, since Brockamp “foreclosed all equitable exceptions to the limitations period provided in § 6511”); Brummett" }, { "docid": "21862310", "title": "", "text": "then a fact issue remains concerning the amount of a refund due them, precluding summary judgment. The frivolity of this argument is patently obvious, and the other contentions raised in the Stellys’ briefs are equally meritless. It is clear beyond peradventure that the income tax on wages is constitutional. See e.g., Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 430, 75 S.Ct. 473, 476, 99 L.Ed. 483 (1955); Eisner v. Macomber, 252 U.S. 189, 207, 40 S.Ct. 189, 193, 64 L.Ed. 521 (1919); Brushaber v. Union Pacific Railroad Co., 240 U.S. 1, 12, 36 S.Ct. 236, 239, 60 L.Ed. 493 (1916); Perkins v. Commissioner, 746 F.2d 1187, 1188 (6th Cir.1984); Granzow v. Commissioner, 739 F.2d 265, 267-68 (7th Cir.1984); Crain v. Commissioner, 737 F.2d 1417 (5th Cir.1984); Funk v. Commissioner, 687 F.2d 264, 265 (8th Cir.1982); Lonsdale v. Commissioner, 661 F.2d 71, 72 (5th Cir. 1981); United States v. Romero, 640 F.2d 1014, 1016 (9th Cir.1981); Broughton v. United States, 632 F.2d 706, 707 (8th Cir. 1980), cert. denied, 450 U.S. 930, 101 S.Ct. 1390, 67 L.Ed.2d 363 (1981); United States v. Francisco, 614 F.2d 617, 619 (8th Cir. 1980), cert. denied, 446 U.S. 922, 100 S.Ct. 1861, 64 L.Ed.2d 278 (1980); United States v. Russell, 585 F.2d 368, 370 (8th Cir.1978); United States v. Porth, 426 F.2d 519, 523 (10th Cir.1970), cert. denied, 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970); Acker v. Commissioner, 258 F.2d 568, 574-76 (6th Cir.1958), aff'd, 361 U.S. 87, 80 S.Ct. 144, 4 L.Ed.2d 127 (1959). Every court that has addressed the issue of the constitutionality of the income tax on wages, 28 U.S.C. § 61(a), has held the statute valid. The Stellys’ contention to the contrary is frivolous. IV Sanctions are appropriate when a frivolous appeal is brought, pursuant to Fed.R.Ap.P. 38, and for appeals from the tax court, under 26 U.S.C. § 7482(c)(4). See H.R.Rep. No. 1, 69th Cong., 1st Sess. at 19 (1939-1 Cum.Bull. (pt. 2) 315, 328). Cf. Fed.R.Civ.P. 11. These sanctions may include single or double costs as well as reasonable attorney’s fees. Wright v. Commissioner, 752" }, { "docid": "4910568", "title": "", "text": "satisfied Section 7422’s filing requirement by submitting a claim for refund to the IRS in May of 1983. Having done so, the question for the court becomes whether under Section 1346(a)(1) it has subject matter jurisdiction to hear a case filed by a plaintiff who has paid taxes on behalf of a taxpayer who was the actual subject of a tax assessment under-the erroneous belief that the plaintiff would ultimately be personally liable for the taxes. There is a split of authority, which has existed for at least forty years, over the jurisdictional reach of 28 U.S.C. § 1346(a)(1). Compare Hofheinz v. United States, 511 F.2d 661, 662, (5th Cir.1975); Eighth Street Baptist Church, Inc. v. United States, 431 F.2d 1193, 1194 (10th Cir.1970); Ellison v. United States, 558 F.Supp. at 160-61; and Hummell v. United States, 494 F.Supp. at 1004-05, with Parsons v. Anglim, 143 F.2d 534, 536-37 (9th Cir.1944); Schoenherr v. United States, 566 F.Supp. 1365, 1367 (E.D.Wis.1983); and McMahon v. United States, 172 F.Supp. 490, 494 (D.R.I.1959). In opinions denying jurisdiction under Section 1346(a)(1), the reason cited for the denial generally has been that since this section constitutes a waiver of sovereign immunity, it must be narrowly construed to allow only those taxpayers who were actually assessed taxes by the IRS to bring suit in federal court to recover the amounts paid. See, e.g., Eighth Street Baptist Church, 431 F.2d at 1194; Ellison v. United States, 558 F.Supp. at 160. Courts extending the jurisdictional purview of the section apparently have done so for equitable reasons to avoid barring a plaintiff from any right of recovery against the United States for taxes erroneously paid. See Parsons, 143 F.2d at 536-37; Schoenherr, 566 F.Supp. at 1367. As far as the court can determine, no court in the Fourth Circuit has spoken on the issue. After reviewing the applicable case law, the court has concluded that it does not have subject matter jurisdiction to hear Factory Storage’s case against the United States. This appears to be the majority view, and the facts of the present case are strikingly similar to" }, { "docid": "20648603", "title": "", "text": "DYK, Circuit Judge. Computervision Corporation (“Computervision”) appeals the decision of the United States Court of Federal Claims which held that Computervision is not entitled to a refund of deficiency interest assessed and paid with respect to its 1982 tax year. The court granted the United States’ motion to dismiss on the ground that the statute of limitations barred an interest suspension claim because the plaintiff failed to file a claim with the Internal Revenue Service (“IRS”) until more than 10 years after the expiration of the two year limitation period of 26 U.S.C. § 6511(a). The court also held that an interest netting claim failed to state a claim because the requirements of 26 U.S.C. § 6621(d) were not met under our decision in Federal National Mortgage Ass’n v. United States, 379 F.3d 1303 (Fed.Cir.2004). We affirm. BACKGROUND The facts of this case are not in dispute. On September 14, 1983, Computervision, a manufacturer of computer-aided manufacturing products, overpaid its tax liability shown on its 1982 return by $4,750,231, and elected to apply this overpayment to its 1983 tax year. On September 17, 1984, Computervision overpaid the amount of taxes shown on the 1983 return by $7,329,276, and again elected to apply this overpayment to the following year, the 1984 tax year. Finally, on July 2, 1985, Computervision filed a return for the 1984 tax year showing an overpayment of $7,166,031, and requested a refund of the entire amount. The IRS paid the refund, without interest, on August 2,1985. Following an audit, the IRS issued an “examination report” on January 7, 1986, in which it asserted that the taxpayer’s 1982 return had understated its tax liability and proposed a deficiency of $6,224,982 for the 1982 tax year. A portion of this deficiency resulted from the IRS’s determination that a subsidiary of Computervision, Computervision International, Inc. (CVI), did not qualify as a domestic international sales corporation, or DISC, during the 1983 tax year. See 26 U.S.C. § 992(a)(1) (1982). Another portion of the deficiency concerned what we refer to as non-DISC issues. On April 11, 1986, Computervision submitted a protest regarding" }, { "docid": "3097884", "title": "", "text": "U.S.C. §§ 6513(b)(2) and 6511(b)(2)(A). 28. Numerous additional authorities support the Court’s conclusion that plaintiff is barred from receiving any credit or refund for the tax year 1996. See Chemical Bank New York Trust Co. v. United States, 275 F.Supp. 26, 28-31 (S.D.N.Y.1967), aff'd per curiam, 386 F.2d 995 (2d Cir.1967) (taxpayer who remitted estimated 1957 income taxes but had not filed tax returns claiming refund for tax years 1957-1960 until 1962, was barred by limitation statute from maintaining such refund claim notwithstanding his assertion that remittances of estimated taxes merely were payments “on account” in nature of deposits in escrow, since 26 U.S.C. § 6511(b)(2)(A) provides that claim for credit of tax overpayment may not be asserted for overpayment made more than 3 years prior to claim); Binder v. United States, 590 F.2d 68, 69-71 (3d Cir.1978) (suit seeking to recover monies that taxpayer and his employer had paid as “escrow payments” of estimated income taxes and withholding taxes was time barred because amounts were deemed “paid” more than 3 years before plaintiff filed his administrative refund claim, where taxpayer failed to show that he or his employer, in making such payments, in any way indicated that such money was to be set aside in suspense account or otherwise until his tax liability was determined); United States v. Miller, 315 F.2d 354 (10th Cir.1963) (payments made by taxpayers in January of 1953 and 195k, unaccompanied by tax returns were payments mistakenly made as estimated income tax for 1952 and 1953, rather than voluntary remittances, and claim for refund made in 1960, along with filing of returns for 1952 and 1953 showing no taxes due for such years, was barred by 3 year statute of limitations); In Matter of Sims, 1991 WL 253017, 71 AFTR 2d 93-4023, 91-2 USTC ¶ 50,510 (Bkrtcy.E.D.La. Aug.28, 1991) (taxpayer who filed 1982 return requesting that his overpayment be applied toward his estimated taxes for year 1983, which was deemed paid on April 15, 198k, but who did not file his 1983 return until March 30, 1989 was not entitled to have his claimed overpayment" }, { "docid": "20594035", "title": "", "text": "transferee of assets of a taxpayer who owes income tax.” Sa-lus Mundi Found. v. Comm’r, 776 F.3d 1010, 1017 (9th Cir.2014). Tax liabilities on transferred assets shall, with certain exceptions, be “assessed, paid, and collected in the same manner and subject to the same provisions and limitations as in the cases of taxes with respect to which the liabilities were incurred.” 26 U.S.C. § 6901. While federal law provides the procedure for collecting tax liabilities from a transferee, state law answers the question whether the alleged transferee is substantively liable for the tax. Comm’r v. Stern, 357 U.S. 39, 44-45, 78 S.Ct. 1047, 2 L.Ed.2d 1126 (1958). Therefore, in order to impose tax liability on a transferee, a court must engage in a two-pronged inquiry, see Salus Mundi, 776 F.3d at 1018 (citing Stern, 357 U.S. at 42, 44-45, 78 S.Ct. 1047), which is sometimes called the Stem test. The first prong asks: “is the party a ‘transferee’ under § 6901 and federal tax law?” Id. Under federal law, a “transferee” is defined as including a “donee, heir, legatee, devisee, [or] distributee.” 26 U.S.C. § 6901(h). Treasury regulations further define the term “transferee” to include “the shareholder of a dissolved corporation.” 26 C.F.R. § 301.6901-l(b). The second prong of the Stem test asks: “is the party substantively liable for the transferor’s unpaid taxes under state law?” Salus Mundi 776 F.3d at 1018. The test for this second prong depends on the law of the state where the transfer occurred. See, e.g., id. (“Under the [New York Uniform Fraudulent Conveyance Act], a party seeking to recharacterize a transaction must show that the transferee had ‘actual or constructive knowledge of the entire scheme that renders [its] exchange with the debtor fraudulent.’ ”) (alterations in original) (quoting Diebold Found., Inc. v. Comm’r, 736 F.3d 172, 184-85 (2d Cir.2013)). The two Stern test prongs “are separate and independent inquiries.” Salus Mundi 776 F.3d at 1012. B The Commissioner argues that the tax court erred in analyzing the first prong of the Stem test: whether the shareholders are “transferees” as “shareholder^] of a dissolved corporation.”" }, { "docid": "12284559", "title": "", "text": "G.M. Leasing Corp. v. United States, 429 U.S. 338, 350-51, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977); Horton Dairy, Inc. v. United States, 986 F.2d 286, 291 (8th Cir.1993); F.P.P. Enterprises v. United States, 830 F.2d 114, 117-18 (8th Cir.1987). In determining the economic reality of a transaction, courts must analyze the substance of a transaction and are not restricted by its form. See, e.g., Gregory v. Helvering, 293 U.S. 465, 469-70, 55 S.Ct. 266, 79 L.Ed. 596 (1935); Estate of Sachs v. Commissioner, 856 F.2d 1158, 1164 (8th Cir.1988). While taxpayers are permitted to reduce their tax burden by any lawful means available, they are not permitted “to construct paper entities to avoid taxation when those entities are without economic substance.” Chase v. Commissioner, 59 T.C.M. (CCH) 261, 264, 1990 WL 33360 (1990) (citations omitted), aff'd, 926 F.2d 737 (8th Cir.1991). When an entity is without economic substance, it may be deemed to be the “alter ego” of the taxpayer. “Alter ego means ‘other self' — where one person or entity acts like, or, for another to the extent that they may be considered identical.” Loving Saviour Church v. United States, 556 F.Supp. 688, 691 (D.S.D.1983), aff'd, 728 F.2d 1085 (8th Cir.1984) (per curiam). “Property held in the name of an entity which is the alter ego of a taxpayer may be levied on to satisfy the tax liabilities of the taxpayer.” F.P.P. Enterprises, 830 F.2d at 118 (upholding finding that trusts created by taxpayers were the alter egos of taxpayers, and therefore not separate persons apart from taxpayers). Generally, federal courts will look to state law to determine whether an entity is an alter ego of a taxpayer. See Loving Saviour Church, 728 F.2d at 1086 (citing Aquilino v. United States, 363 U.S. 509, 512-13, 80 S.Ct. 1277, 4 L.Ed.2d 1365 (1960)). In Victoria Elevator Co. v.. Meriden Grain Co., 283 N.W.2d 509, 513 (Minn.1979) (Victoria Elevator), the court held that where a shareholder “did not treat the corporation as a separate legal entity, he should not be entitled to its protection against personal liability.” In determining whether" }, { "docid": "4361165", "title": "", "text": "§ 6321 arises upon assessment and continues until it is satisfied or becomes unenforceable. 26 U.S.C. § 6322. Section 6321 “creates no property rights but merely attaches consequences, federally defined, to rights created under state law_” United States v. Bess, 357 U.S. 51, 55, 78 S.Ct. 1054, 1057, 2 L.Ed.2d 1135 (1958). Taxpayer concedes that the tax lien attached to his “rights created under state law.” A Nebraska statute defines “property” as “one or more interests either legal or equitable, possessory or nonpossessory, present or future, in land, or in things other than land_” Neb.Rev.Stat. § 76— 101(a) (1990). The statute further provides that the term “future interest is applicable equally to property interests in land and in things other than land, and is limited to all varieties of remainders, reversions [&c.].” Neb.Rev.Stat. § 76-101(b). Therefore, taxpayer’s interest in the trust, even if contingent, is “property” within the meaning of § 6321. Because the taxpayer concedes that the tax lien attached, we have no question before us regarding whether the lien may attach to contingent property interests. See, e.g., City of New York v. United States, 283 F.2d 829 (2d Cir.1960); Bigheart Pipeline Corp. v. United States, 600 F.Supp. 50, 53 (N.D.Okla.1984), aff'd, 835 F.2d 766 (10th Cir.1987); Home Ins. Co. v. B.B. Rider Corp., 212 F.Supp. 457 (D.N.J.1963); In re Rosenberg’s Will, 62 Misc.2d 12, 308 N.Y.S.2d 51, 70-1 U.S.Tax Cas. (CCH) ¶ 9293 (1970). Neither are we presented with the argument that the “relation-back” idea avoids attachment of the lien. See, e.g., Stickell v. United States, 78-1 U.S. Tax Cas. (CCH) ¶ 9328, 1978 WL 1185 (N.D.Ill.1978); United States v. McCrackin, 189 F.Supp. 632 (S.D.Ohio 1960). Cf. In re Detlefson, 610 F.2d 512 (8th Cir.1979) (relation-back of disclaimer under state law prevented interest from vesting in bankruptcy trustee). As the county court order recognized, taxpayer’s renunciation was effective on the date it was executed, without the benefit of the relation-back doctrine. Once the tax lien has attached to the taxpayer’s state-created interest, federal law applies. Aquilino v. United States, 363 U.S. 509, 513-14, 80 S.Ct. 1277, 1280-81, 4" }, { "docid": "7889283", "title": "", "text": "claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws.... As the district court in this case acknowledged, there is a split of authority among the courts over the jurisdictional reach of this statute. In opinions finding lack of jurisdiction, the reason generally cited for the denial is that, since the statute constitutes a waiver of sovereign immunity, it must be narrowly construed. A narrow construction allows only those taxpayers who were actually assessed by the IRS to bring suit in federal court to recover the amounts paid. See, e.g., Snodgrass v. United States, 834 F.2d 537 (5th Cir.1987); Busse v. United States, 542 F.2d 421 (7th Cir.1976); Eighth Street Baptist Church, 431 F.2d 1193 (10th Cir.1970); Phillips v. United States, 346 F.2d 999 (2d Cir.1965); Ellison v. United States, 558 F.Supp. 158 (W.D.Mo.1982). Some courts broadly viewing the jurisdictional purview of the statute have done so for equitable reasons to avoid barring a plaintiff from a right of recovery against the United States for taxes erroneously paid. See, e.g., United States v. Halton Tractor Co., 258 F.2d 612 (9th Cir.1958); Schoenherr v. United States, 566 F.Supp. 1365 (E.D.Wis.1983). Other courts have found that a person may qualify as a taxpayer and sue under § 1346(a)(1) if the payment of a third party’s taxes was not voluntary or intended as a donation. Adams v. United States, 380 F.Supp. 1033 (D.Mon.1974); McMahon v. United States, 172 F.Supp. 490 (D.R.I.1959). The district court chose to follow those decisions that have narrowly construed the statute and held that only the taxpayer against whom the tax was assessed has standing to sue for a refund. Because the taxes in this case were assessed against Jerry and Mark Brodsky, the court found that the Martins had no standing to sue for a refund of the taxes. This Circuit has not addressed the question of standing under § 1346(a)(1). The district court relied in part, however, on the district court decision in Factory Storage Corp. v. United States, 611 F.Supp. 433" }, { "docid": "21094956", "title": "", "text": "attributable to the other spouse. See 26 U.S.C. § 6013(e)(l)(B)(1994). As the Commissioner does not contest that the grossly erroneous items were Don’s, we will assume that this is not an issue. . The Tax Court did not address whether the substantial understatement of tax was attributable to grossly erroneous items, and Reser’s appellate brief makes no specific argument on this point. Reser's assertion of the innocent spouse defense in the inconsistent alternative, however, necessarily assumes a ruling disallowing the Resers’ deductions of DRPC's losses, thereby establishing this element of the defense. . 26 U.S.C. § 6013(e)(2)(1994) (emphasis added). . Bokum, 94 T.C. at 142 (quoting Belk v. Commissioner, 93 T.C. 434, 442, 1989 WL 112763 (1989)); Douglas v. Commissioner, 86 T.C. 758, 762-63, 1986 WL 22118 (1986); Purcell v. Commissioner, 826 F.2d 470, 475-76 (6th Cir.1987), cert. denied, 485 U.S. 987, 108 S.Ct. 1290, 99 L.Ed.2d 500 (1988). . See Bokum, 94 T.C. at 144 (finding grossly erroneous items where there was no basis in law for the deductions). . 26 U.S.C. § 1366(a)(1994); Underwood v. Commissioner, 535 F.2d 309, 310 (5th Cir.1976). . 26 U.S.C. § 1366(a)(1994); Underwood, 535 F.2d at 310. . 26 U.S.C. § 1366(d)(1994). . Harris v. United States, 902 F.2d 439, 443 (5th Cir.1990): Underwood, 535 F.2d at 311-12; Estate of Leavitt v. Commissioner, 875 F.2d 420, 422 (4th Cir.), aff'g, 90 T.C. 206, 1988 WL 8227 (1988), cert. denied, 493 U.S. 958, 110 S.Ct. 376, 107 L.Ed.2d 361 (1989); Selfe v. United States, 778 F.2d 769, 772 (11th Cir. 1985). . See e.g. Underwood, 535 F.2d at 312; Harris, 902 F.2d at 445; Leavitt, 875 F.2d at 422; Brown v. Commissioner, 706 F.2d 755, 756 (6th Cir. 1983); Uri v. Commissioner, 949 F.2d 371 (10th Cir.1991); Roesch v. Commissioner, 57 T.C.M. (CCH) 64, 65 (1989), aff'd, 911 F.2d 724 (4th Cir.1990). But see Selfe, 778 F.2d at 772-75 (shareholder’s guarantee is sufficient to increase basis in S corporation if the facts demonstrate that, in substance, shareholder borrowed funds and subsequently advanced them to corporation; remanding to Tax Court to determine whether loan from" }, { "docid": "6985333", "title": "", "text": "on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration. Connor purports to find authority for his argument in Eisner v. Macomber, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521 (1920), a case patently inapposite because it held merely that a stock dividend made to shareholders in their proportionate interests against profits accumulated by the corporation was not income. As the Supreme Court later explained in Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 430-31, 75 S.Ct. 473, 99 L.Ed. 483 (1955), the Eisner Court held that the distribution of a corporate stock dividend changed only the form of the taxpayer’s capital investment, and that because the taxpayer received nothing out of the company’s assets for his separate use and benefit, the distribution was not a taxable event. Glenshaw reiterated that Congress intended to use the full measure of its taxing power in creating the income tax. Id. at 429, 75 S.Ct. at 475-76, citing, inter alia, Helvering v. Clifford, 309 U.S. 331, 334, 60 S.Ct. 554, 556, 84 L.Ed. 788 (1940). Congress exercised its power to tax income by defining income as, inter alia, “compensation for services, including fees, commissions, fringe benefits and similar items.” 26 U.S.C. § 61(a)(1) (Supp. II 1984). Every court which has ever considered the issue has unequivocally rejected the argument that wages are not income. See, e.g., Coleman v. Commissioner, 791 F.2d 68, 70 (7th Cir.1986); Connor v. Commissioner, 770 F.2d 17, 20 (2d Cir.1985) (per curiam); Perkins v. Commis sioner, 746 F.2d 1187, 1188 (6th Cir.1984) (per curiam); Funk v. Commissioner, 687 F.2d 264, 264 (8th Cir.1982) (per curiam). Moreover, Connor’s argument has already been rejected by this court. In Sauers v. Commissioner, 771 F.2d 64 (3d Cir.1985), cert. denied, 476 U.S. 1162, 106 S.Ct. 2286, 90 L.Ed.2d 727 (1986), the taxpayer argued, inter alia, that wages are property and therefore are not taxable income. Id. at 66 n. 2. This court agreed with the Tax Court that the taxpayer's “legal contentions were patently frivolous,” id. at 66, and affirmed the decision" }, { "docid": "8914019", "title": "", "text": "laws or related statutes (or equivalent laws and statutes of a State) and tax conventions to which the United States is a party, and (ii) the development and formulation of Federal tax policy relating to existing or proposed internal revenue laws, related statutes, and tax conventions, and (B) includes assessment, collection, enforcement, litigation, publication, and statistical gathering functions under such laws, statutes, or conventions. . The other authority relied upon by the Government is no more satisfying. In refuting the claims of the corporate plaintiffs, the Government also cites the opinions of two Tenth Circuit district courts for the proposition that an audit is an \"administrative proceeding pertaining to tax administration.\" See Government’s Br. at 23 (citing First W. Gov’t Sec., Inc. v. United States, 578 F.Supp. 212, 217 (D.Colo.1984), aff'd, 796 F.2d 356 (10th Cir.1986), and Nevins v. United States, 88-1 U.S.Tax Cas. (CCH) ¶ 9199, 1987 WL 47316 (D.Kan.1987)). The first, the lower court in the First Western case, simply remarked that \"[t]here is little doubt that an audit, with its numerous procedural steps and protections and its appeal process, constitutes an administrative proceeding pertaining to tax administration.\" 578 F.Supp. at 217. The second offered even less reasoning, citing the first without discussion. Nevins, 88-1 U.S.Tax Cas. (CCH) ¶9199. . The Supreme Court also has described an audit as an \"investigation” and as part of the IRS’ “investigative authority.” E.g., United States v. Bisceglia, 420 U.S. 141, 146, 95 S.Ct. 915, 919, 43 L.Ed.2d 88 (1975); see also United States v. Baggot, 463 U.S. 476, 477-78, 103 S.Ct. 3164, 3165-66, 77 L.Ed.2d 785 (1983) (describing IRS audit as \"civil tax investigation”). A review of a tax audit's mechanics reinforces the conclusion that an audit is merely an investigation. A revenue agent conducting a tax audit performs quintessentially investigative functions, such as examining a taxpayer’s books, papers, records, and other materials, and deposing witnesses. See 26 U.S.C. §§ 7601, 7602; 26 C.F.R. § 601.105 (1992). . Not insignificantly, as the Government conceded at argument, the IRS audit would not satisfy the Administrative Procedure Act (APA)’s definition of the analogous" } ]

[ { "docid": "23249753", "title": "", "text": "U.S.C.A. § 1491(b)(4) (West Supp.1997). The relevant law is the Competition in Contracting Act (“CICA”) which imposes a duty on the Corps to “obtain full and open competition.” 41 U.S.C. § 253(a)(1)(A) (1994); 10 U.S.C. § 2304(a)(1)(A) (1994). A consequence of this duty is that solicitation provisions which restrict competition may be used only “to the extent necessary to satisfy the needs of the agency or as authorized by law.” 48 C.F.R. § 11.002(a)(l)(ii) (1997); 41 U.S.C. § 253a(a)(2)(B); 10 U.S.C. § 2305(a)(l)(B)(ii). “Unnecessarily restrictive specifications or requirements that might unduly limit the number of bidders are prohibited.” 48 C.F.R. § 14.101(a). Both parties appear to agree that the abrasion test requirements chosen by the Corps restrict competition. The issue, then, is whether the restriction is reasonably necessary to meet the Corps’ needs with respect to the Poplar Island project. In resolving this issue under the arbitrary and capricious standard, the court should not substitute its judgment for the agency’s. Cincom Systems, Inc. v. United States, 37 Fed.Cl. 663, 672 (1997). The agency’s decision is entitled to a “presumption of regularity,” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 5. Ct. 814, 823, 28 L.Ed.2d 136 (1971), although that presumption does not shield it from a “thorough, probing, in-depth review.” Id. While the court “recognize[s] the relevant agency’s technical expertise and experience, and defer[s] to its analysis unless it is without substantial basis in fact,” Federal Power Comm’n v. Florida Power & Light Co., 404 U.S. 453, 463, 92 S.Ct. 637, 644, 30 L.Ed.2d 600 (1972), the court must also perform an informed review of even technical decisions in order to meaningfully exercise its jurisdiction. Prineville Sawmill Co., Inc. v. United States, 859 F.2d 905, 910-11 (Fed.Cir.1988). Furthermore, “[ejxpertise is a rational process and a rational process implies expressed reasons for judgment.” Mid-State Fertilizer v. Exchange Nat’l Bank, 877 F.2d 1333,1339 (7th Cir.1989) (quoting Federal Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591, 627, 64 S.Ct. 281, 299-300, 88 L.Ed. 333 (1944) (Frankfurter, J., dissenting)). The court “must ensure that the agency has" } ]

[ { "docid": "2759313", "title": "", "text": "challenge. 28 U.S.C. § 1491(b)(1) (2012); Sys. Application & Techs., Inc. v. United States, 691 F.3d 1374, 1380-82 (Fed.Cir.2012). As in all bid protests, the court reviews a decision to take corrective action pursuant to the standards set forth in the Administrative Procedure Act (“APA”), see 28 U.S.C. § 1491(b)(4), and will set aside the decision if it is “‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,”’ Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350 (Fed.Cir.2004) (quoting 5 U.S.C. § 706(2)(A) (2012)). Under this standard, the court may set aside the Air Force’s decision to take corrective action if, as Raytheon alleges, the Air Force’s decision lacked a rational basis or involved a violation of regulation or procedure. See Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed.Cir.2009). Procurement officials “are entitled to exercise discretion upon a broad range of issues confronting them in the procurement process.” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.Cir.2001) (internal quotation marks omitted). Thus, when a protestor challenges the procuring agency’s decision as irrational, the court’s review is “highly deferential” to the agency’s decision, Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed.Cir.2000), and “[t]he court is not empowered to substitute its judgment for that of the agency,” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). “Accordingly, the test for reviewing courts is to determine whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a heavy burden of showing that the award decision had no rational basis.” Impresa, 238 F.3d at 1332-33 (citation and internal quotation marks omitted); accord Advanced Data Concepts, 216 F.3d at 1058 (“The arbitrary and capricious standard ... requires a reviewing court to sustain an agency action evincing rational reasoning and consideration of relevant factors.”). When a protestor claims that the procuring agency’s decision violates a statute, regulation, or procedure, it must show that the violation was “clear and prejudicial.”" }, { "docid": "17285663", "title": "", "text": "award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1). In bid protest cases, this Court reviews agency actions under the Administrative Procedure Act’s (“APA”) “arbitrary and capricious” standard. See 28 U.S.C. § 1491(b)(4) (adopting the standard of review set forth in the APA). Under this standard, an “ ‘award may be set aside if either (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.’ ” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)). In this regard, the United States Court of Appeals for the Federal Circuit has explained that: “when a challenge is brought on the first ground, the test is Vhether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a “heavy burden” of showing that the award decision had no rational basis.’ ” Id. (quoting Impresa, 238 F.3d at 1332-33). ‘“When a challenge is brought on the second ground, the disappointed bidder must show a clear and prejudicial violation of applicable statutes or regulations.’ ” Id. (quoting Impresa, 238 F.3d at 1333). In addition, when reviewing an agency’s procurement decision, the Court should recognize that the agency’s decision is entitled to a “presumption of regularity.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). “The [Cjourt should not substitute its judgment for that of a procuring agency.” Cincom Sys., Inc. v. United States, 37 Fed.Cl. 663, 672 (1997). And so, “[t]he protestor must show, by a preponderance of the evidence, that the agency’s actions were either without a reasonable basis or in violation of applicable procurement law.” Info. Tech. & Applics. Corp. v. United States, 51 Fed.Cl. 340, 346" }, { "docid": "108802", "title": "", "text": "award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1). In bid protest cases, this Court reviews agency actions under the Administrative Procedure Act’s (“APA”) “arbitrary and capricious” standard. See 28 U.S.C. § 1491(b)(4) (adopting the standard of review set forth in the Administrative Procedure Act). Under this standard, an award may be set aside if “(1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed.Cir.2004) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.Cir.2001)). In this regard, the Federal Circuit has explained that: When a challenge is brought on the first ground, the test is whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a “heavy burden” of showing that the award decision had no rational basis. When a challenge is brought on the second ground, the disappointed bidder must show a clear and prejudicial violation of applicable statutes or regulations. Id. (quotations omitted). In addition, when reviewing an agency’s procurement decision, the Court should recognize that the agency’s decision is entitled to a “presumption of regularity.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977) (citation omitted). The Court should not substitute its judgment for that of the agency. Cincom Sys., Inc. v. United States, 37 Fed.Cl. 663, 672 (1997). And so, “[t]he protestor must show, by a preponderance of the evidence, that the agency’s actions were either without a reasonable basis or in violation of applicable procurement law.” Info. Tech. & Applies. Corp. v. United States, 51 Fed.Cl. 340, 346 (2001), aff'd, 316 F.3d 1312 (Fed.Cir.2003) (citation omitted); see Gentex Corp. v. United States, 58 Fed.Cl. 634, 648 (2003). The Court’s standard of review" }, { "docid": "19030673", "title": "", "text": "94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The Court has jurisdiction over Fulcra’s post-award bid protest pursuant to the Tucker Act, 28 U.S.C. § 1491(b) (2006), as amended by the Administrative Dispute Resolution Act of 1996, Pub.L. No. § 104—320, § 12(a)-(b) (1996). The Act states that the Court of Federal Claims “shall have jurisdiction to render judgment on an action by an interested party objecting to ... a proposed award or the award of a contract.” § 1491(b)(1). The Court of Federal Claims “shall have jurisdiction to entertain such an action without regard to whether suit is instituted before or after the contract is awarded.” Id. B. Standard of Review in Bid Protests The Court reviews bid protests under the standards set out in the Administrative Procedure Act (APA), 5 U.S.C. § 706. See 28 U.S.C. § 1491(b)(4). Under the APA, the Court will set aside the agency decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350-51 (Fed.Cir.2004) (citing Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057-58 (Fed.Cir.2000)). A procurement may be set aside if: (1) the procuring official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure. Id. at 1351. In this case, Fulcra alleges that the contracting officer lacked a rational basis for his decision to award the contract to SOSi. When a challenge is brought on this ground, the test is “whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a heavy burden of showing that the award decision had no rational basis.” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332-33 (Fed.Cir.2001) (citations omitted). Agency decisions should be set aside as arbitrary and capricious if the agency “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 [the decision] is so implausible that" }, { "docid": "12408230", "title": "", "text": "United States, 749 F.2d 1571, 1574 (Fed.Cir.1984), cert. denied, 474 U.S. 818, 106 S.Ct. 64, 88 L.Ed.2d 52 (1985). The fact that both parties have moved for summary judgment does not relieve the court of its responsibility to determine the appropriateness of summary disposition. Prineville Sawmill Co. v. United States, 859 F.2d 905, 911 (Fed.Cir.1988) (citing Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed.Cir.1987)). A cross-motion is a party’s claim that it alone is entitled to summary judgment. A Olympic Forwarder, Inc. v. United States, 33 Fed.Cl. 514, 518 (1995). It does not follow that if one motion is rejected, the other is necessarily supported. Id. Rather, the court must evaluate each party’s motion on its own merit and resolve all reasonable inferences against the party whose motion is under consideration. Id. (citing Corman v. United States, 26 Cl.Ct. 1011, 1014 (1992)). The court reviews challenged agency decisions under the standards set forth in the APA. 5 U.S.C. § 706 (1994); Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.Cir.2001) (citations omitted). In particular, the court must determine whether the agency’s actions were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C. § 706. A bid award may be set aside, therefore, “if either: (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Impresa, 238 F.3d at 1332 (citations omitted). When the case at issue involves unique and sensitive information, the court must also “give due regard to the interests of national defense and national security and the need for expeditious resolution of the action.” 28 U.S.C. § 1491(b)(3) (Supp.1996). When evaluating whether an agency official’s actions were rational, the APA requires a “thorough, probing, in-depth review” to determine “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Contracting officials, however, may" }, { "docid": "21610867", "title": "", "text": "must consider whether (1) the plaintiff has succeeded on the merits, (2) the plaintiff will suffer irreparable harm if the court withholds injunctive relief, (3) the balance of hardships to the respective parties favors the grant of injunctive relief, and (4) the public interest is served by a grant of injunctive relief. PGBA, LLC v. United States, 389 F.3d 1219, 1228-29 (Fed.Cir.2004). In the exercise of its bid protest jurisdiction, the court reviews agency action “pursuant to the standards set forth in section 706 of title 5” of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551-59, 701-06. 28 U.S.C. § 1491(b)(4). Section 706 of the APA provides, in relevant part, that a “reviewing court shall ... hold unlawful and set aside agency action, find-' ings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706 (2006). Under these standards, a reviewing court may set aside a procurement action if “(1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.Cir.2001). A court reviews a challenge brought on the first ground “to determine whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a heavy burden of showing that the award decision had no rational basis.” Id. at 1332-33 (quotation marks and citations omitted). “When a challenge is brought on the second ground, the disappointed bidder must show a clear and prejudicial violation of applicable statutes or regulations.” Id. at 1333 (quotation marks omitted). We have jurisdiction over an appeal from a final decision of the Court of Federal Claims ' pursuant to 28 U.S.C. § 1295(a)(3). We review the “court’s determination on the legal issue of the government’s conduct, in a grant of judgment upon the administrative record, without deference.” Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed.Cir.2005). This means that we apply the “arbitrary and capricious” standard of § 706" }, { "docid": "17525964", "title": "", "text": "the Court finds that Labat-Anderson and Severn are more in line with the cited provisions of FASA and FAR, and that FASA’s prohibition on bid protests does not cover GSA Federal Supply Schedule orders. Therefore, the Court possesses subject matter jurisdiction under the Tucker Act to review this protest. II. Standard of Review The Court reviews challenges to agency actions in a bid protest according to the standards set forth in the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (“APA”). Under this standard, the Court shall set aside the 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) (incorporated by reference in 28 U.S.C. § 1491(b)(4)). See also Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350-51 (Fed.Cir.2004); Impresa Construz-ioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1330 (Fed.Cir.2001); Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057-58 (Fed.Cir. 2000). Under the APA standards, “a bid award may be set aside if either: (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Impresa Construzioni, 238 F.3d at 1332 (citations omitted). When a challenge is brought on the first ground, the “disappointed bidder bears a ‘heavy burden’ of showing that the award decision ‘had no rational basis.’ ” Id. (quoting Saratoga Dev. Corp. v. United States, 21 F.3d 445, 456 (D.C.Cir.1994)). “[T]he courts have recognized that contracting officers are ‘entitled to exercise discretion upon a broad range of issues confronting them’ in the procurement process.” Id. at 1333 (quoting Latecoere Int’l, Inc. v. United States Dept. of Navy, 19 F.3d 1342, 1356 (11th Cir.1994)). “Accordingly, the test for reviewing courts is to determine whether ‘the contracting agency provided a coherent and reasonable explanation of its exercise of discretion.’ ” Id. at 1332-33. “When a challenge is brought on the second ground, the disappointed bidder must show ‘a clear and prejudicial violation of applicable statutes or regulations.’ ” Id. at 1333 (quoting Kentron Hawaii, Ltd. v. Warner, 480 F.2d 1166, 1169" }, { "docid": "9360796", "title": "", "text": "1491(b)(4) (2003) (“In any action under this subsection, the courts shall review the agency’s decision pursuant to the standards set forth in section 706 of title 5.”). Regarding this standard, the Supreme Court has stated that: Section 706(2)(A) requires a finding that the actual choice made was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” To make this finding the court must consider whether the decision was based on a con sideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (citations omitted); see also Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057-58 (Fed.Cir.2000). Under the APA standard, “a bid award may be set aside if either (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of a regulation or procedure.” Banknote Corp. of America v. United States, 365 F.3d 1345, 1351 (Fed.Cir.2004)(quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.Cir.2001)); see also Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.Cir.1996). In determining whether the agency’s actions were arbitrary and capricious, the court’s inquiry must focus on whether the agency “examined the relevant data,” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), and “whether ‘the contracting agency provided a coherent and reasonable explanation of its exercise of discretion,’ ” Banknote Corp. of America, 365 F.3d at 1351 (quoting Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1332-33). “The [arbitrary and capricious standard ... is highly deferential ... [and] requires a reviewing court to sustain an agency action evincing rational reasoning and consideration of relevant factors.” Advanced Data Concepts, Inc. v. United" }, { "docid": "1621270", "title": "", "text": "v. United States, 113 Fed.Cl. 347, 355 n. 5 (2013) (quoting McKing Consulting Corp. v. United States, 78 Fed.Cl. 715, 721 (2007)). Neither defendant nor C & D challenged RUSH’S standing in this matter. RUSH was an actual bidder, and was determined by the agency to be the low bidder. As such, it meets the substantial chance requirement. The court finds that RUSH has standing to bring this protest. 2. Merits The Administrative Procedure Act (APA) standard of review applies to the court’s examination of an agency’s decision, which means that the court will set aside an agency decision only if it is “arbitrary, capricious, an abuse of discretion; or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (2012). Rule 52.1 permits the court to review an administrative record and to issue a ruling on a motion for judgment on that record. RCFC 52.1(c). The Federal Circuit has said that “[u]nder the APA standard ... ‘a bid award may be set aside if either (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.’ ” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed.Cir.2004) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.Cir.2001)). Plaintiff must make its showing by a preponderance of the evidence. See, e.g., AmerisourceBergen Drug Corp. v. United States, 60 Fed.Cl. 30, 35 (2004). According to the Supreme Court, [u]nder the ‘arbitrary and capricious’ standard the scope of review is a narrow one. A reviewing court must ‘consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.... Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.’ Citizens to Preserve Overton Park v. Volpe, [401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) ]. The agency must articulate a ‘rational connection between the facts found" }, { "docid": "15839010", "title": "", "text": "if the Government “acted without rational basis or contrary to law when evaluating the bids and awarding the contract.”); Banknote Corp., 365 F.3d at 1350 (“Among the various APA standards of review in section 706, the proper standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” (citation omitted)). A protester, however, bears a “heavy burden” of showing that an award decision had no rational basis. See Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332-33 (Fed.Cir.2001). Therefore, when the court finds a “reasonable basis” for an agency’s action, the court should “stay its hand even though it might, as an original proposition, have reached a different conclusion as to the proper administration and application of the procurement regulations.” Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed.Cir.1989) (citation omitted). This standard recognizes a zone of acceptable results in each particular case and requires that the final decision reached by an agency is the result of a process that “consider[s] the relevant factors” and is “within the bounds of reasoned decision making.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983); see also Impresa, 238 F.3d at 1333-34 (“[T]he test for reviewing courts is to determine whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a heavy burden of showing that the award decision had no rational basis.” (citation & internal quotations omitted)). If a trial court determines that an agency’s decision fails an APA review, the court is then obligated to inquire whether the protester was prejudiced by the Government’s conduct. See Bannum, 404 F.3d at 1351 (“[I]f the trial court finds that the government’s conduct fails the APA review under 5 U.S.C. § 706(2)(A), then it proceeds to determine, as a factual matter, if the bid protester was prejudiced" }, { "docid": "2104916", "title": "", "text": "1491(b)(1) (2000), as amended by the Administrative Dispute Resolution Act of 1996, Pub.L. No. 104-320, § 12, 110 Stat. 3870, 3874-75 (1996) (“ADRA”), to consider an action by an interested party objecting to an award of a contract and any alleged violation of a statute or regulation in connection with a procurement. We may provide declaratory and injunctive relief as we deem proper. 28 U.S.C. § 1491(b)(2). We are directed by section 1491(b)(4) to review the legality of an agency’s decision based on the standards set forth in the Administrative Procedure Act (“APA”), 5 U.S.C. § 706 (2000), which provides that the reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The Federal Circuit has interpreted the APA standard in the bid protest context to mean that an agency’s action may be set aside under two circumstances: “(1) [when] the procurement official’s decision lacked a rational basis; or (2) [when] the procurement procedure involved a violation of regulation or procedure.” Banknote Corp. of America v. United States, 365 F.3d 1345, 1351 (Fed.Cir.2004) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.Cir.2001)). See also Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed.Cir.2005) (The reviewing court must determine “whether the government acted without rational basis or contrary to law when evaluating the bids and awarding the contract.”). The rational basis test involves a determination of “whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a ‘heavy burden’ of showing that the award decision had no rational basis.” Banknote Corp., 365 F.3d at 1351 (quoting Impresa, 238 F.3d at 1332) (internal citation omitted). Even if the agency’s action violated a procurement statute or procedure, the disappointed bidder still must “show a clear and prejudicial violation of applicable statutes or regulations.” Id. (quoting Impresa, 238 F.3d at 1333). In reviewing the agency’s evaluation of proposals, our review is generally limited to" }, { "docid": "11928300", "title": "", "text": "the Air Force’s decision and that it has standing to bring this action. See Impresa, 238 F.3d at 1334. C. Relevant Standards Of Review. 1. In Bid Protest Cases. Bid protest actions are reviewed under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (“APA”), which provides that: The reviewing court shall — ... hold unlawful and set aside agency action, findings, and conclusions found to be — ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.] 5 U.S.C. § 706(2)(A); see also NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed.Cir.2004) (holding that “an agency’s decision is to be set aside only if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ”); Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1329 (Fed.Cir.2004) (holding that in bid protest cases, “ ‘a bid award may be set aside if either (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.’ ”); Impresa, 238 F.3d at 1332 (holding that “a bid award may be set aside if either: (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.”). To prevail on a challenge that the procedure utilized in a procurement involved a violation of regulation or procedure, plaintiff must “show ‘a clear and prejudicial violation of applicable statutes or regulations.’” Id. at 1333 (quoting Kentron Hawaii, Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C.Cir.1973)). In deciding whether a procurement official’s decision lacks a “rational basis,” the court’s inquiry should “determine whether ‘the contracting agency provided a coherent and reasonable explanation for its exercise of discretion.’ ” Impresa, 238 F.3d at 1332-33; see also Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)) (“[I]n making the factual inquiry concerning whether an agency decision was ‘arbitrary or" }, { "docid": "10838423", "title": "", "text": "Administrative Dispute Resolution Act of 1996. Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1330 (Fed.Cir.2001). To afford relief in bid protest cases, this Court “may award any relief that [it] considers proper, including declaratory and injunctive relief.” 28 U.S.C. § 1491(b)(2). Under the Administrative Dispute Resolution Act, the Court reviews bid protest cases “ ‘pursuant to the standards set forth in section 706 of title 5’ of the APA [Administrative Procedures Act].” Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1332 (quoting 28 U.S.C. § 1491(b)(4)). In relevant part, section 706 of title 5 of the APA states: “The reviewing court shall—... (2) hold unlawful and set aside agency action, findings, and conclusions found to be—(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;... [or] (D) without observance of procedure required by law....” Id. (citing 5. U.S.C. § 706). Under the APA standards, “a bid award may be set aside if either: (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Id. (citations omitted). When a challenge is brought on the first ground, the “disappointed bidder bears a ‘heavy burden’ of showing that the award decision ‘had no rational basis.’ ” Id. at 1333 (quoting Saratoga Dev. Corp. v. United States, 21 F.3d 445, 456 (D.C.Cir.1994)). “[T]he courts have recognized that contracting officers are ‘entitled to exercise discretion upon a broad range of issues confronting them’ in the procurement process.” Id. at 1333 (quoting Latecoere Int'l, Inc. v. United States Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir.1994)). “Accordingly, the test for reviewing courts is to determine whether ‘the contracting agency provided a coherent and reasonable explanation of its exercise of discretion.’” Id. at 1332-33. “When a challenge is brought on the second ground, the disappointed bidder must show ‘a clear and prejudicial violation of applicable statutes or regulations.’” Id. at 1333 (quoting Kentron Hawaii, Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C.Cir.1973)). A protester’s showing that a contracting officer’s award decision was arbitrary and capricious, or that" }, { "docid": "5507029", "title": "", "text": "ADRA. Pub.L. No. 104-320, § 12(d), 110 Stat. at 3876. This action was brought in the Court of Federal Claims in April 2003. Under the ADRA, the Court of Federal Claims “review[s] the agency’s decision pursuant to the standards set forth in section 706 of title 5,” i.e., the standards found in the Administrative Procedure Act (APA). 28 U.S.C. § 1491(b)(4). Among the various APA standards of review in section 706, the proper standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Advanced Data Concepts, Inc. v. United, States, 216 F.3d 1054, 1057-58 (Fed.Cir.2000) (noting that bid protests do not present an agency record derived from a hearing and thus the “substantial evidence” standard of § 706(2)(E) does not apply). In bid protest cases filed under the ADRA, the court implements this APA standard by applying the standard as previously interpreted by the district courts in the so-called Scanwell line of cases, referring to the 1970 case upholding district court APA review of Government procurement decisions. Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1331-32 (Fed.Cir.2001) (citing Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C.Cir.1970), and explaining the history of judicial review of Government procurement decisions). Under the APA standard as applied in the Scanwell line of cases, and now in ADRA cases, “a bid award may be set aside if either (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Id. at 1332. When a challenge is brought on the first ground, the test is “whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a ‘heavy burden’ of showing that the award decision had no rational basis.” Id. at 1332-33 (citations omitted). “When a challenge is brought on the second ground, the disappointed bidder must show a clear and prejudicial violation" }, { "docid": "5356783", "title": "", "text": "706 contains several standards, “the proper standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350 (Fed.Cir.2004). Under this standard, the court “may set aside a procurement action if ‘(1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.’ ” Centech Grp., Inc., 554 F.3d at 1037 (quoting Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1332). Here, plaintiff claims that the Army’s exclusion of its proposal from the competition lacked a rational basis. Procurement officials “are entitled to exercise discretion upon a broad range of issues confronting them in the procurement process.” Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1332 (internal quotation marks omitted). Thus, when a protester challenges the procuring agency’s decision as irrational, the court’s review is “highly deferential” to the agency’s decision, Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed.Cir.2000), and “[t]he court is not empowered to substitute its judgment for that of the agency,” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). “Accordingly, the test for reviewing courts is to determine whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a heavy burden of showing that the award decision had no rational basis.” Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1332-33 (citation and internal quotation marks omitted); accord Advanced Data Concepts, Inc., 216 F.3d at 1058 (“The arbitrary and capricious standard ... requires a reviewing court to sustain an agency action evincing rational reasoning and consideration of relevant factors.”). As noted above, plaintiffs challenge to its exclusion from the competition is based upon its contention that teaming partner cost/price data was not a required part of its proposal. Consequently, plaintiff asserts, the Army should" }, { "docid": "15970404", "title": "", "text": "contract.”). 2. Standard of review of a bid protest in a negotiated ‘procurement In evaluating an agency procurement decision, the ADRA prescribes the standard of review set forth in the Administrative Procedure Act, 5 U.S.C. § 706 (2000) (the “APA”). See 28 U.S.C. § 1491(b)(4) (2000); Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350 (Fed.Cir.2004). The APA gives the court discretion to set aside agency action only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see PGBA, LLC v. United States, 389 F.3d 1219, 1224-28 (Fed.Cir.2004) (clarifying that ADRA incorporated arbitrary and capricious standard of APA as standard of review, but did not alter court’s equitable discretion in granting remedy of injunctive relief). Even if a disappointed bidder can show that the agency’s conduct violated the APA standard, not all violations of this standard entitle a disappointed bidder to relief. The bidder also must show that it actually was prejudiced by that agency conduct. For this reason the Federal Circuit has directed that [a] bid protest proceeds in two steps. First, ... the trial court determines whether the government acted without rational basis or contrary to law when evaluating the bids and awarding the contract. Second, ... if the trial court finds that the government’s conduct fails the APA review under 5 U.S.C. § 706(2)(A), then it proceeds to determine, as a factual matter, if the bid protester was prejudiced by that conduct. Bannum, 404 F.3d at 1351. The plaintiff bears the “heavy burden” of proving a lack of rational basis or a violation of the law by a preponderance of the evidence. Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1333 (Fed.Cir. 2001) (“Domenico Garufi”). Agency action is arbitrary or capricious when it lacks any rational basis. For an agency action to be grounded on some rational basis, “ ‘the contracting agency [must] provide[ ] a coherent and reasonable explanation of its exercise of discretion.’” Id. at 1332 (quoting Saratoga Dev. Corp. v. United States, 21 F.3d 445, 456 (D.C.Cir.1994)). An" }, { "docid": "12408231", "title": "", "text": "1332 (Fed.Cir.2001) (citations omitted). In particular, the court must determine whether the agency’s actions were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C. § 706. A bid award may be set aside, therefore, “if either: (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Impresa, 238 F.3d at 1332 (citations omitted). When the case at issue involves unique and sensitive information, the court must also “give due regard to the interests of national defense and national security and the need for expeditious resolution of the action.” 28 U.S.C. § 1491(b)(3) (Supp.1996). When evaluating whether an agency official’s actions were rational, the APA requires a “thorough, probing, in-depth review” to determine “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Contracting officials, however, may properly exercise wide discretion in their application of procurement regulations. Electro-Methods, Inc. v. United States, 7 Cl.Ct. 755, 762 (1985). In this regard, the court cannot substitute its judgment for that of the agency, even if reasonable minds could reach differing conclusions. CRC Marine Servs., Inc. v. United States, 41 Fed.Cl. 66, 83 (1998). “This deference is particularly great when a negotiated procurement is involved and is greater still when the procurement is a ‘best value’ procurement.” Bean Stuyvesant, L.L.C. v. United States, 48 Fed.Cl. 303, 320 (2000) (citations omitted). “[I]n situations where the court must ‘review technical matters that are within the agency’s expertise, the highest degree of deference is warranted.’ ” Id. As long as a rational basis is articulated and relevant factors are considered, therefore, the agency’s action must be upheld. Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). The “disappointed bidder bears a ‘heavy burden’ of showing that the award decision ‘had no rational basis.’” Impresa, 238 F.3d at 1333" }, { "docid": "19049847", "title": "", "text": "of regulation or procedure.’ ” Centech Grp., Inc., 554 F.3d at 1037 (quoting Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1332). Procurement officials “are entitled to exercise discretion upon a broad range of issues confronting them in the procurement process.” Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1332 (internal quotation marks omitted). Thus, when a protester challenges the procuring agency’s decision as irrational, the court’s review is “highly deferential” to the agency’s decision, Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed.Cir. 2000), and “[t]he court is not empowered to substitute its judgment for that of the agency,” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). “Accordingly, the test for reviewing courts is to determine whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a heavy burden of showing that the award decision had no rational basis.” Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1332-33 (citation and internal quotation marks omitted); accord Advanced Data Concepts, Inc., 216 F.3d at 1058 (“The arbitrary and capricious standard ... requires a reviewing court to sustain an agency action evincing rational reasoning and consideration of relevant factors.”). When a protester claims that the procuring agency’s decision violates a statute, regulation, or procedure, it must show that the violation was “clear and prejudicial.” Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1333 (internal quotation marks omitted). 1. The Army’s Reliance on the GAO Attorney’s April 20, 2011 Electronic-Mail Message Renders Its Decision to Take Corrective Action Irrational The first protest ground asserted by plaintiff—that the Army’s decision to take corrective action is arbitrary, capricious, and unreasonable because the decision is based on an electronic-mail message from a GAO attorney that is itself unreasonable—raises two threshold issues: was the Army’s decision to take corrective action premised on the GAO attorney’s April 20, 2011 eleetronie-mail message and, to the extent that it was, is the court empowered to review the electronic-mail message for rationality in the same way it" }, { "docid": "19049846", "title": "", "text": "Army’s proposed corrective action, standing on its own, lacks a rational basis and involves a violation of law, regulation, or procedure. Third, it avers that even if the decision to take corrective action is appropriate, the corrective action proposed by the Army is overly broad. The court concludes that SA-TECH’s first two protest grounds have merit. In a bid protest, the Court of Federal Claims reviews the challenged agency action pursuant to the standards set forth in 5 U.S.C. § 706. 28 U.S.C. § 1491(b)(4). Although section 706 contains several standards, “the proper standard to be applied in bid protest eases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350 (Fed.Cir.2004). Under this standard, the court “may set aside a procurement action if ‘(1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.’ ” Centech Grp., Inc., 554 F.3d at 1037 (quoting Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1332). Procurement officials “are entitled to exercise discretion upon a broad range of issues confronting them in the procurement process.” Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1332 (internal quotation marks omitted). Thus, when a protester challenges the procuring agency’s decision as irrational, the court’s review is “highly deferential” to the agency’s decision, Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed.Cir. 2000), and “[t]he court is not empowered to substitute its judgment for that of the agency,” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). “Accordingly, the test for reviewing courts is to determine whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a heavy burden of showing that the award decision had no rational basis.” Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1332-33 (citation and" }, { "docid": "15839009", "title": "", "text": "Pursuant to the Tucker Act, as amended by the ADRA, the United States Court of Federal Claims reviews challenges to agency decisions pursuant to the standards set forth in the Administrative Procedure Act, 5 U.S.C. § 706. See 28 U.S.C. § 1491(b)(4) (“In any action under this subsection, the courts shall review the agency’s decision pursuant to the standards set forth in section 706 of title 5.”); see also 5 U.S.C. § 706(2)(A) (“[T]he reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]”). Accordingly, the United States Court of Appeals for the Federal Circuit has held that “a bid award may be set aside if either (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Galen Med. Assocs., 369 F.3d at 1329 (internal citations omitted) (emphasis added); see also Bannum, 404 F.3d at 1351 (holding that trial courts initially must determine if the Government “acted without rational basis or contrary to law when evaluating the bids and awarding the contract.”); Banknote Corp., 365 F.3d at 1350 (“Among the various APA standards of review in section 706, the proper standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” (citation omitted)). A protester, however, bears a “heavy burden” of showing that an award decision had no rational basis. See Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332-33 (Fed.Cir.2001). Therefore, when the court finds a “reasonable basis” for an agency’s action, the court should “stay its hand even though it might, as an original proposition, have reached a different conclusion as to the proper administration and application of the procurement regulations.” Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed.Cir.1989) (citation omitted). This standard recognizes a zone of acceptable results in each" } ]

[ { "docid": "22381823", "title": "", "text": "holding that federal law does not allow an antitrust defendant to recover in contribution from co-conspirators. The District Court also determined there was no just reason for delay with respect to that aspect of the case and entered final judgment under Federal Rule of Civil Procedure 54 (b). On appeal, the Court of Appeals for the Fifth Circuit affirmed, holding that, although the Sherman and the Clayton Acts do not expressly afford a right to contribution, the issue should be resolved as a matter of federal common law. Wilson P. Abraham Construction Corp. v. Texas Industries, Inc., 604 F. 2d 897 (1979). The court then examined what it perceived to be the benefits and the difficulties of contribution and concluded that no common-law rule of contribution should be fashioned by the courts. II The common Jaw provided no right to contribution among joint tortfeasors. Union Stock Yards Co. v. Chicago, B. & Q. R. Co., 196 U. S. 217 (1905); W. Prosser, Law of Torts § 50, pp. 305-307 (4th ed. 1971). See Merryweather v. Nixan, 8 Term Rep. 186, 101 Eng. Rep. 1337 (K B. 1799). See also Northwest Airlines, Inc. v. Transport Workers, ante, at 86-87, n. 16. In part, at least, this common-law rule rested on the idea that when several tortfeasors have caused damage, the law should not lend its aid to have one tortfeasor compel others to share in the sanctions imposed by way of damages intended to compensate the victim. E. g., Atkins v. Johnson, 43 Vt. 78, 81-82 (1870). See Leflar, Contribution and Indemnity Between Tortfeasors, 81 U. Pa. L. Rev. 130, 130-134 (1932). Since the turn of the century, however, 39 states and the District of Columbia have fashioned rules of contribution in one form or another, 10 initially through judicial action and the remainder through legislation. See Northwest Airlines, Inc. v. Transport Workers, ante, at 86-87, and n. 16. Because courts generally have acknowledged that treble-damages actions under the antitrust laws are analogous to common-law actions sounding in tort, we are urged to follow this trend and adopt contribution for antitrust" } ]

[ { "docid": "5778904", "title": "", "text": "there are numerous RICO criminal forfeiture cases which indicate that the nature of the RICO offense mandates joint and several liability. See United States v. Caporale, 806 F.2d 1487, 1506-09 (11th Cir.1986), cert. denied, 482 U.S. 917, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987); United States v. Benevento, 663 F.Supp. 1115, 1118-19 (S.D.N.Y.1987), 836 F.2d 129 (2d Cir.1988); see also Beneficial Standard Life Ins. Co. v. Madariaga, 851 F.2d 271, 272 (9th Cir.1988) (civil RICO liability assessed joint and severally); cf., Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 638-46, 101 S.Ct. 2061, 2065-70, 68 L.Ed.2d 500 (1981) (no right to contribution implied under Sherman or Clayton Act); Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 86-99, 101 S.Ct. 1571, 1577-80, 67 L.Ed.2d 750 (1981) (no right to contribution implied under Equal Pay Act or Title VII); Miller v. Affiliated Financial Corp., 624 F.Supp. 1003, 1004 (N.D.Ill.1985) (contribution is not available as to RICO liability, relying on Texas Industries and Northwest Airlines). Defendants all participated in the “enterprise” responsible for the RICO violations; awarding damages separately between each plaintiff and defendant is inconsistent with the nature of the injury appellants inflicted and brings about a danger of multiplying damages before they are trebled. CONCLUSION We AFFIRM the jury’s verdict on all liability issues with the exception of Krypton. We REVERSE the judgment as to Krypton. We also REVERSE the damages determination; plaintiffs are entitled to damages, assessed jointly and severally against defendants, equal to their investment in the program, in the amount of $211,700. Based on RICO principles, this award will be trebled, the amounts to be allocated based on the schedule attached reflecting the total payments made by each plaintiff. APPENDIX Purchase Plain- Price/ tiff/Tran- Down script Tes- Payment timony Due Damage Awards (without trebling) (R. 61) Damages Damages Total Actual Against Against Each of Damages Down C. Elvin Other 4 Defen- Against Payment Tax Tax Feltner, dants (separate- All Defen-Made Audit Treatment Jr. ly) dants 1. Natividad $65,000/ Aumentado $12,500 (Tr. 1096-1097) (stipulation) $6,000 yes received bene- $10,048 + $2,512 x 4 = $20,096 fits;" }, { "docid": "6054076", "title": "", "text": "court holds that if Loeb Rhoades is found to have violated a federal securities provision allowing for contribution and is found liable for damages under that provision, Loeb Rhoades has a right of contribution against a coun-terdefendant whose intentional wrongdoing contributed to the injury for which Loeb Rhoades was assessed damages. B. RICO Claims This court already has considered and rejected Loeb Rhoades’ claims for indemnity and contribution for any liability for which it may be subject under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68 (1984). See Olympia Brewing Co., slip op. at 16-17. The court’s rejection of this claim is consistent with the Supreme Court’s re strictive analysis for implied rights of actions. See Miller v. Affiliated Financial Corp., 624 F.Supp. 1003, 1004 (N.D.Ill.1985) (Shadur, J.) (the court rejected the defendants’ indemnity and contribution claims for liability under RICO); Central Illinois Sav. & Loan Ass’n, 622 F.Supp. at 1498-1500 (no indemnity for RICO liability); Boone v. Beacon Bldg. Corp., 613 F.Supp. 1151, 1154 (D.N.J.1985) (no contribution for RICO liability). The court finds no reason here to reconsider its earlier ruling. C. Common-Law Claims The plaintiffs also assert that Loeb Rhoades committed certain common-law violations, including fraud and breach of its duty to supervise its employees. See, e.g., Shure Parties Final Amended Complaint, Counts III and IV at 13-15. Since the actions giving rise to the plaintiffs’ common-law claims occurred between 1974 and 1977, Loeb Rhoades has no right to contribution under Illinois law. The right to contribution, first provided by the Supreme Court of Illinois in Skinner v. Reed-Prentice Division Package Machinery Co., 70 Ill.2d 1, 15 Ill.Dec. 829, 834, 374 N.E.2d 437, 442 (1977), cert. denied, 436 U.S. 946, 98 S.Ct. 2849, 56 L.Ed.2d 787 (1978) and then codified by the Illinois legislature in the Contribution Among Joint Tortfeasors Act (“Contribution Act”), Ill.Rev.Stat. ch. 70, ¶¶ 301-305 (1985), only applies to causes of action arising out of occurrences on or after March 1, 1978. Van Slambrouck v. Economy Baler Co., 105 Ill.2d 462, 86 Ill.Dec. 488, 491, 475 N.E.2d 867, 870 (1985); Ill.Rev.Stat." }, { "docid": "18379076", "title": "", "text": "to them for the portion of the damage caused by releases from the third-party defendants’ facilities. In addition, the defendants, pursuant to Rule 23, Fed.R.Civ.P., ask that I certify a class, to be represented by the named third-party defendants, consisting of all persons who have ownership and other interests in the Yak Tunnel and its laterals. It is estimated that there are 200 to 500 potential third-party defendant class members. This motion for class certification is reserved for later decision and not decided in this opinion. At a hearing on March 29, 1985, I ordered the parties to brief the issue whether there is a right to contribution under CERCLA § 107, 42 U.S.C. § 9607. Plaintiff and the third-party defendants Hecla Mining Company, Sharon Steel Corporation, Leadville Mining Corporation, William J. Whatley, Alfred T. Whatley, and D.P. Canty have moved to dismiss the third-party complaints asserting that there is no such right. Defendants, on the other hand, argue that CERCLA does provide a right to contribution. A right to contribution under a federal statute may arise in either of two ways: “first, through the affirmative creation of a right of action by Congress either expressly or by clear implication; or, second, through the power of federal courts to fashion a federal common law of contribution.” Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 638, 101 S.Ct. 2061, 2065-66, 68 L.Ed.2d 500 (1981); see also Northwest Airlines, Inc. v. Transport Workers Union of America, AFL-CIO, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981). After review of the statute and its legislative history, I conclude, for the reasons stated below, that Congress empowered the federal courts to establish a federal common law of liability under § 107, and to decide whether contribution among responsible parties shall be permitted. To date the liability issue most litigated under § 107 has been whether CERCLA provides for joint and several liability. The Senate bill that led to CERCLA, S. 1480, originally provided for joint, several and strict liability. S. 1480, 96th Cong., 2d Sess. § 4(a), 126 Cong.Rec. 30,908 (1980)" }, { "docid": "6054077", "title": "", "text": "The court finds no reason here to reconsider its earlier ruling. C. Common-Law Claims The plaintiffs also assert that Loeb Rhoades committed certain common-law violations, including fraud and breach of its duty to supervise its employees. See, e.g., Shure Parties Final Amended Complaint, Counts III and IV at 13-15. Since the actions giving rise to the plaintiffs’ common-law claims occurred between 1974 and 1977, Loeb Rhoades has no right to contribution under Illinois law. The right to contribution, first provided by the Supreme Court of Illinois in Skinner v. Reed-Prentice Division Package Machinery Co., 70 Ill.2d 1, 15 Ill.Dec. 829, 834, 374 N.E.2d 437, 442 (1977), cert. denied, 436 U.S. 946, 98 S.Ct. 2849, 56 L.Ed.2d 787 (1978) and then codified by the Illinois legislature in the Contribution Among Joint Tortfeasors Act (“Contribution Act”), Ill.Rev.Stat. ch. 70, ¶¶ 301-305 (1985), only applies to causes of action arising out of occurrences on or after March 1, 1978. Van Slambrouck v. Economy Baler Co., 105 Ill.2d 462, 86 Ill.Dec. 488, 491, 475 N.E.2d 867, 870 (1985); Ill.Rev.Stat. ch. 70, ¶ 301 (1985). Illinois courts consistently dismiss contribution claims based on occurrences prior to that date. See, e.g., Van Slambrouck, 86 Ill.Dec. at 491, 475 N.E.2d at 870; MFA Mut. Ins. Co. v. Crowther, Inc., 120 Ill.App.3d 387, 75 Ill.Dec. 903, 908, 458 N.E.2d 71, 76 (1st Dist.1983). Although this court recently determined that the Contribution Act extinguished any implied right to indemnity under Illinois law, see TRW, Inc. v. Dart Indus., Inc., No. 84 C 3049, slip op. at 16 (N.D.Ill. March 6, 1986) [Available on WESTLAW, 1986 WL 3327], the court’s holding does not apply to causes of action which occurred prior to March 1, 1978 and hence are not covered by the Contribution Act. Under Illinois law, the doctrine of implied indemnity developed hand-in-hand with the earlier Ilinois rule against contribution. See Heinrich v. Peabody Int’l Corp., 139 Ill.App.3d 289, 93 Ill.Dec. 544, 547, 486 N.E.2d 1379, 1382 (1st Dist.1985) (cases cited therein). Illinois courts permitted implied-indemnity claims in order to ameliorate the harshness of the no-contribution rule. See id." }, { "docid": "16486491", "title": "", "text": "as a matter of federal common law. Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 638, 101 S.Ct. 2061, 2065, 68 L.Ed.2d 500 (1981); Northwest Airlines, Inc. v. Transport Workers Union, AFL-CIO, 451 U.S. 77, 90, 101 S.Ct. 1571, 1580, 67 L.Ed.2d 750 (1981). Instead, a right of contribution exists only if Congress intended to create such a right in a particular statute, or if the courts determine that it is appropriate to fashion one to implement a federal statute. Id. In Texas Industries, the Supreme Court held that there was no statutory basis for allowing a tortfeasor to seek contribution from a joint tortfeasor under the Sherman and Clayton Acts. 451 U.S. at 639-40, 101 S.Ct. at 2066-67. The Court reached a similar conclusion in Northwest Airlines regarding the Equal Pay Act and Title VII of the Civil Rights Act. 451 U.S. at 84 n. 50, 101 S.Ct. at 15 n. 50. In each case, the Court held that it was inappropriate for the courts to fashion a right of contribution as a matter of federal common law in applying these statutes. Texas Industries, 451 U.S. at 639-40, 101 S.Ct. at 2066-67; Northwest Airlines, 451 U.S. at 98, 101 S.Ct. at 1584. Similarly, it appears there is no common law federal right to contribution in a CERCLA case. Rather, 42 U.S.C. § 9613(f)(1) both established and defined, rather than removed, the right of a joint tortfeasor to contribution in CERCLA cases. Moreover, even if the non-settling defendants would have otherwise had a pre-existing right to contribution, enactment of 42 U.S.C. § 9613(f)(1), which provides contribution protection to settling defendants, was not an unconstitutional taking or a violation of any right to due process because Congress has the power to create new rights or limit existing ones if, as here, it has a valid legislative purpose. See Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 88 n. 32, 98 S.Ct. 2620, 2638 n. 32, 57 L.Ed.2d 595 (1978) (upholding Price-Anderson Act’s limitations on state tort claims in event of nuclear plant accident). See also Hammond" }, { "docid": "17305622", "title": "", "text": "by which to seek relief from joint tortfeasors. The availability of impleader enables the right of contribution to be litigated concurrently with the main claim. Because the question whether someone is a joint tortfeasor is largely one of fact to be determined by the jury, a motion to dismiss the third-party complaint on the ground that it fails to state a claim normally should be denied and the third-party plaintiff allowed an opportunity to produce evidence as to the nature of the relationship. 6 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1448 (2d ed.1990) (footnotes omitted). Is there a right of action for either contribution or indemnity as relief in a case involving violation of the FDCPA? Contribution — Definition “Contribution is the proportionate sharing of liability among tortfeasors. Typically, a right to contribution is recognized when two or more persons are liable to the same plaintiff for the same injury and one of the joint tortfeasors has paid more than his fair share of the common liability.” In re “Agent Orange” Product Liability Litigation, 818 F.2d 204, 207 (2d Cir.1987) (citations and quotations omitted). Indemnity — Definition “... [Liability for loss shifted from one person held legally responsible to another person ...” Black’s Law Dictionary, 5th ed., West Publishing Co., (1979) Right of Action In the case at bar, the FDCPA provides very specific and articulated rights and remedies, leading one to conclude that if Congress had intended an explicit right to contribution or indemnity, it would have included it in the statute. There is no express right of action for either contribution or indemnity in either the FDCPA or the CUBPA. The Supreme Court has identified specific factors which indicate Congressional intent to create a statutory right of contribution. “These factors are the statutory language, the legislative history, the underlying purpose and structure of the statutory scheme, and the likelihood that Congress intended to supersede or to supplement existing state remedies.” Northwest Airlines Inc., v. Transport Workers Union of America, AFL—CIO, 451 U.S. 77 at 91, 101 S.Ct. 1571, 67" }, { "docid": "13983715", "title": "", "text": "implead a third party who is or may become liable to the defendant for all or part of the plaintiffs claim. Fed.R.Civ.P. 14(a). This rule allows the accelerated determination of contingent and third party liability. See Williams v. Ford Motor Credit Co., 627 F.2d 158, 160 (8th Cir.1980). Although impleader is proper under the federal rules only where there is a substantive right to the relief sought, it is available even though in state court an independent action would first be required to vindicate the substantive right. C. Wright, The Law of Federal Courts § 576, at 511 (4th ed. 1984). . Although the district court stated in its order that Stacker was entitled to \"indemnity and/or contribution” from Green, Stacker's claim against Green is clearly for indemnity rather than for contribution. Indemnity enables a person to recover reimbursement from another for the discharge of a liability which, as between that person and the other, should have been discharged by the other. Restatement of Restitution § 76 (1937). Contribution allows one who has discharged more than his or her fair share of liability or burden to recover from another who is also liable the proportionate share that the other should bear. Id. at § 99. See generally W.P. Keeton, Prosser and Keeton on the Law of Torts § 51 (5th ed. 1984). . We recognize that the Supreme Court has been reluctant to find rights of indemnity or contribution among those potentially liable under federal statutes. See Texas Industries, Inc. v. Radcliff Materials, 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981) (refusing to find a right of contribution among joint tortfeasors under the Clayton and Sherman Acts); Northwest Airlines v. Transport Workers Union, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981) (refusing to find a right of contribution among joint tortfeasors under the Equal Pay Act and Title VII); see also supra Part II of this opinion. In those cases, however, the Court specifically found that Congress neither expressly nor implicitly provided for rights of indemnity or contribution under the federal statutes in question. See Texas" }, { "docid": "757015", "title": "", "text": "comparative liability for that fatality. Indemnity for Liability under RICO Bank also seeks indemnity for its potential liability to Central under the RICO claim stated in Complaint Count I. In response, Leskovisek, Otten and Powers correctly contend a defendant subject to liability for a RICO violation cannot obtain indemnification. During the last five years the Supreme Court has considered — and in each case rejected — defendants’ rights to obtain contribution for violations of the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964 (Northwest Airlines, 451 U.S. 77, 101 S.Ct. 1571) and of the Sherman and Clayton Acts (Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981)). Although those cases addressed only claims for contribution, their rationale equally bars Bank’s claim for indemnity. Anderson v. Local Union No. 3, International Brotherhood of Electrical Workers, 582 F.Supp. 627, 633 (S.D.N.Y.), aff'd, 751 F.2d 546 (2d Cir.1984). Northwest Airlines, 451 U.S. at 90, 101 S.Ct. at 1580 teaches Bank’s right to indemnity under RICO could arise either (1) as an implied cause of action under that statute or (2) as a part of the federal common law. Neither theory works in this case. I. Implication of a Private Right of Action To determine whether a federal statute impliedly creates a private right of action, this Court must focus on congressional intent. Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 104 S.Ct. 831, 839, 78 L.Ed.2d 645 (1984) once again identifies the familiar considerations this Court should explore to that end: That intent may in turn be discerned by examining a number of factors, including the legislative history and purposes of the statute, the identity of the class for whose particular benefit the statute was passed, the existence of express statutory remedies adequate to serve the legislative purpose, and the traditional role of the states in affording the relief claimed. Without question RICO’s statutory language does not expressly create a right to indemnity in favor of RICO defendants. Nor does it suggest one. Certainly RICO was not" }, { "docid": "757006", "title": "", "text": "the failure of Leskovisek, Otten and Powers to exercise due care in examining the loan file. That negligence, says Bank, entitles it to indemnification. Leskovisek, Otten and Powers counter with three arguments: 1. Implied indemnity in Illinois has been extinguished by the Illinois Contribution Among Joint Tortfeasors Act (the “Act,” Ill.Rev.Stat. ch. 70, ¶¶ 301-305). 2. No intentional tortfeasor can obtain indemnity. 3. RICO’s comprehensive character indicates Congress intended to preclude a right to indemnity. pleaded factual allegations in the Bank Complaint, drawing all reasonable factual inferences in Bank’s favor. Wolf oik v. Rivera, 729 F.2d 1114, 1116 (7th Cir.1984). Because the Bank Complaint is contingent on Bank’s liability under the Central Complaint, allegations in the latter document are also accepted as true even though they are disputed in Bank’s Amended Answer (\"Bank Ans.’’). Of course no actual findings of fact are made or implied by the recital in the text. This opinion will first treat briefly with the choice-of-law issue, then consider each of those contentions in turn. Choice of Law Bank seeks indemnity from the third-party defendants on two of Central’s claims — the RICO claim (Count I) and the common-law fraud claim (Count IX). Central’s RICO claim confers federal-question jurisdiction on this Court under 28 U.S.C. § 1331. Central’s common-law claim is properly before this Court under the doctrine of pendent jurisdiction because it “derivet ] from a common nucleus of operative fact” with the RICO claim (which also sounds in fraud). United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 5. Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). Bank’s right to indemnity on Central’s RICO claim (if it exists at all) must be grounded in federal law. Cf. Northwest Airlines, Inc. v. Transport Workers Union of America, AFL-CIO, 451 U.S. 77, 90, 101 S.Ct. 1571, 1580, 67 L.Ed.2d 750 (1981) (employer’s asserted right to contribution from union based on liability for Title VII violation derived either from the federal statute or from federal common law). But despite the “common nucleus” involved in the common-law claim, United States ex rel. Hoover v. Franzen, 669" }, { "docid": "16486490", "title": "", "text": "in unaccounted for costs after the Consent Decrees are entered. Olin Hunt argues that if it is unable to cross-claim against the settling defendants, it may have to pay more than five times the amount of actual damages EPA attributes to it. Olin Hunt asserts that this in creased exposure is arbitrary, unjust and irrational because it is not based on new evidence that Olin Hunt had increased responsibility for conditions at the sites. Rather, it results from EPA’s allegedly unbalanced settlement tactics. Olin Hunt argues that a more rational approach for Congress would have been to adopt the comparative fault approach for CERCLA embodied in the UCFA. Olin Hunt asserts that the UCFA approach, under which non-settling jointly and severally liable defendants are released by their proportionate share of liability rather than by the amount received from settlers, would be more equitable and, therefore, constitutional. With respect to Olin Hunt’s due process argument, in two recent cases the Supreme Court has ruled that a right of contribution from a joint tortfeasor does not exist as a matter of federal common law. Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 638, 101 S.Ct. 2061, 2065, 68 L.Ed.2d 500 (1981); Northwest Airlines, Inc. v. Transport Workers Union, AFL-CIO, 451 U.S. 77, 90, 101 S.Ct. 1571, 1580, 67 L.Ed.2d 750 (1981). Instead, a right of contribution exists only if Congress intended to create such a right in a particular statute, or if the courts determine that it is appropriate to fashion one to implement a federal statute. Id. In Texas Industries, the Supreme Court held that there was no statutory basis for allowing a tortfeasor to seek contribution from a joint tortfeasor under the Sherman and Clayton Acts. 451 U.S. at 639-40, 101 S.Ct. at 2066-67. The Court reached a similar conclusion in Northwest Airlines regarding the Equal Pay Act and Title VII of the Civil Rights Act. 451 U.S. at 84 n. 50, 101 S.Ct. at 15 n. 50. In each case, the Court held that it was inappropriate for the courts to fashion a right of contribution as" }, { "docid": "757014", "title": "", "text": "must in all events stem from a contractual relationship between the prospective indemnitor and indemnitee: As we interpret these cases, we hold that Illinois law as it now stands does allow a third party action for indemnity where the third party plaintiff and the third party defendant were contracting parties and the third party plaintiff bears no independent fault in the harm to the original plaintiff. Here no contractual relationship ever existed between Bank and Leskovisek, Otten or Powers. Bank’s bald assertion of a pretort relationship, stemming from Central’s duty to examine the loan files delivered by Bank before the assignment, bears no resemblance to the type of relationships identified in Morizzo: Each of the lessor-lessee, employer-employee, owner-lessee and master-servant pairings is directly contractual. Bank’s allegation of pre-tort contacts with Leskovisek, Otten and Powers does not meet the test of the Illinois cases. Bank’s indemnity claim under Illinois law thus falls, fatally wounded from several directions. It is needless to prolong the discussion by applying the Act in a wholly different way: to determine the comparative liability for that fatality. Indemnity for Liability under RICO Bank also seeks indemnity for its potential liability to Central under the RICO claim stated in Complaint Count I. In response, Leskovisek, Otten and Powers correctly contend a defendant subject to liability for a RICO violation cannot obtain indemnification. During the last five years the Supreme Court has considered — and in each case rejected — defendants’ rights to obtain contribution for violations of the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964 (Northwest Airlines, 451 U.S. 77, 101 S.Ct. 1571) and of the Sherman and Clayton Acts (Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981)). Although those cases addressed only claims for contribution, their rationale equally bars Bank’s claim for indemnity. Anderson v. Local Union No. 3, International Brotherhood of Electrical Workers, 582 F.Supp. 627, 633 (S.D.N.Y.), aff'd, 751 F.2d 546 (2d Cir.1984). Northwest Airlines, 451 U.S. at 90, 101 S.Ct. at 1580 teaches Bank’s right to indemnity" }, { "docid": "16619229", "title": "", "text": "proper claim for impleader under Rule 14(a). Defendants had failed to claim that Ms. Ana-ya is or may be liable to the defendants if defendants are found liable to the plaintiff. Defendants have amended their proposed third-party complaint and move the court again for permission to file it. The amended third-party complaint alleges the same acts by Ms. Anaya as did the previous third-party complaint. In Count I of the amended complaint, defendants claim that Ms. Anaya is a “joint tortfeasor” with defendants and should be compelled to respond, in contribution, to any judgment entered against defendants, pursuant to the Contribution Among Tortfeasors Act, N.M.Stat.Ann. §§ 41-3-1, et seq. (1978). In Counts II and III, defendants allege that Ms. Anaya was the primary wrongdoer in the incident, who should indemnify defendants for the entire amount of any judgment entered against them. The Court notes, first, that defendants base their claimed right of contribution upon the New Mexico Contribution Among Tortfeasors Act. As was pointed out in the Court’s ruling on the prior impleader motion, plaintiff’s cause of action is solely for violation of his civil rights under 42 U.S.C. § 1983. Plaintiff has not raised a state-law tort claim. The question of whether a right of contribution exists among joint § 1983 defendants is one of federal common law, not one governed by reference to the law of the forum state. Seaton v. Eddy County, Civ. No. 81-0286 HB (D.N.M. April 26, 1983). New Mexico law regarding the right of a defendant to seek contribution from a joint tortfeasor is not applicable in the case at bar. The common law did not recognize a right of one defendant to seek contribution from a co-defendant adjudged to be jointly and severally liable to the plaintiff. Contribution is usually a statutory creation. None of the civil rights statutes, 42 U.S.C. §§ 1981, et seq., provide for the right of a defendant to seek contribution from a co-defendant. In Northwest Airlines, Inc. v. Transport Workers Union of America, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981), the Supreme Court held that" }, { "docid": "18379098", "title": "", "text": "that case, defendant Westinghouse sought to file a third-party complaint against Monsanto Company. It does not appear that Monsanto, the manufacturer of the hazardous substance PCB, was a responsible party under § 106 or § 107. It is settled law that contribution is only available where joint liability can be imposed. To the extent that the Westinghouse opinion can be construed as stating that contribution is never available under CERCLA, I respectfully disagree. The court in Westinghouse cited Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981) (in which the Supreme Court had held that there is no right to contribution under the Sherman and Clayton Acts), and Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981) (in which the Supreme Court had held that there is no right to contribution under the Equal Pay Act and Title VII), and then concluded that federal courts have repeatedly refused to expand the remedy of contribution being sought by Westinghouse. In my view Westinghouse erred in applying to CEPCLA the standards articulated in Texas Industries and Northwest Airlines. Although Congress did not empower the federal courts to develop a common law of contribution under the antitrust laws, the Equal Pay Act and Title VII, it is clear, as discussed at length above, that Congress did empower the federal courts to develop a federal common law of liability under CERCLA § 107. Moreover, Congress, in § 107(e)(2), explicitly declared its intent to preserve actions for contribution to the extent that the common law provides a right to such actions. I conclude, therefore, that defendants ASARCO, Inc., Resurrection Mining Company, and the Res-ASARCO Joint Venture will have a right to contribution in the event that they are held jointly and severally liable for the damages alleged by the State of Colorado. The issue then arises whether the third-party claims should be tried with the primary claims in one trial, or whether the third-party claims should be bifurcated or severed for separate discovery and trial after the defendants' liability" }, { "docid": "757007", "title": "", "text": "from the third-party defendants on two of Central’s claims — the RICO claim (Count I) and the common-law fraud claim (Count IX). Central’s RICO claim confers federal-question jurisdiction on this Court under 28 U.S.C. § 1331. Central’s common-law claim is properly before this Court under the doctrine of pendent jurisdiction because it “derivet ] from a common nucleus of operative fact” with the RICO claim (which also sounds in fraud). United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 5. Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). Bank’s right to indemnity on Central’s RICO claim (if it exists at all) must be grounded in federal law. Cf. Northwest Airlines, Inc. v. Transport Workers Union of America, AFL-CIO, 451 U.S. 77, 90, 101 S.Ct. 1571, 1580, 67 L.Ed.2d 750 (1981) (employer’s asserted right to contribution from union based on liability for Title VII violation derived either from the federal statute or from federal common law). But despite the “common nucleus” involved in the common-law claim, United States ex rel. Hoover v. Franzen, 669 F.2d 433, 437 (7th Cir.1982) (footnote omitted) explains state law — here Illinois law —controls that claim: [T]his crucial choice-of-law issue [ ] is implicit in the exercise of pendent jurisdiction. The pendent state law claim is governed in all respects by state law____ Merely because the state law claim is in federal court does not lead to the application of federal law. As Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) and its offspring make clear, absent a valid and controlling federal law, state law governs a state law claim (even in nondiversity cases). Even though the parties have been inattentive to that distinction, citing federal and state precedents indiscriminately, this opinion will analyze Bank’s indemnity claims on those separate bases. Indemnity for Liability Based on Common-Law Fraud Complaint Count IX, which sounds in common-law fraud, accuses Bank of fraudulently representing to Central that the notes and mortgages were not in default. Bank seeks to invoke the implied indemnity concept to shift to the third-party defendants Bank’s" }, { "docid": "20044368", "title": "", "text": "Ted S. Finkel Inv. Services, Inc., 641 F.2d 323 (5th Cir.1981). Accordingly, I hold that there is no express or implied right to indemnification under § 11 of the Securities Act or § 10(b) of the Exchange Act. 2. Contribution Contribution is an equitable doctrine based on the principle that a person who discharges a liability shared with another should not bear the sole obligation for payment. See W. Prosser, The Law of Torts § 50 (4th ed. 1971). Contribution distributes plaintiff’s damage among the wrongdoers by requiring each to contribute to plaintiff’s total damages. 1 Dooley, Modern Tort Law § 26.01 (1977). At early common law, English courts did not permit an intentional tortfeasor to recover in contribution. See Merryweather v. Nixan, 101 Eng.Rep. 1337 (K.B. 1799). In years past, the majority of American jurisdictions extended this rule to preclude contribution even among negligent tortfeasors. See e.g. Atkins v. Johnson, 43 Vt. 78 (1870); Miller v. Fenton, 11 Paige Ch. 18 (N.Y.1844). Today, however, most states permit contribution among joint tortfeasors to some extent, although there is great variation among the states as to the measure of damages and effect of a settlement on the right to contribution. See Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 87 n. 17, 101 S.Ct. 1571, 1578 n. 17, 67 L.Ed.2d 750 (1981) (thirty-nine states and the District of Columbia now recognize some right of contribution among tortfeasors). The developing trend to allow contribution has been motivated primarily by two policy objectives: fairness to defendants and deterrence. Nelson v. Bennett, 662 F.Supp. 1324 (E.D.Cal.1987). First, contribution promotes a more fair and equitable distribution of plaintiffs’ losses among all wrongdoers. Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 94 S.Ct. 2174, 40 L.Ed.2d 694 (1974). Second, contribution ensures that the deterrent effect of the law will be felt by all persons liable, rather than merely those persons named as defendants. Id. Here, Hanifen claims rights of contribution under § 11 of the Securities Act and § 10(b) of the Exchange Act. a. § 11 claims § 11 of the" }, { "docid": "4069201", "title": "", "text": "a third party complaint against Robinson and AFC. The counterclaim alleges that MONY had a fiduciary duty to the Trust, under ERISA, in its capacity as claims administrator of the Trust and that by increasing costs to the plan, mishandling claims administration and wasting Trust assets, MONY breached its fiduciary duty and violated provisions of ERISA. The counterclaim also alleges a breach of fiduciary duty in violation of Illinois common law and seeks contribution and punitive damages. The third party complaint also seeks contribution and punitive damages alleging that Robinson and AFC breached their fiduciary duties to the Trust in violation of both ERISA and Illinois state law. MONY has now moved to dismiss the counterclaim and Robinson and AFC have moved to dismiss the third party complaint. DISCUSSION Count I Count I of Yampol’s counterclaim and third party complaint seeks contribution from his alleged co-fiduciaries, MONY, Robinson and AFC, pursuant to 29 U.S.C. § 1105 of ERISA. This necessarily raises the question of whether ERISA provides for a right of contribution. Without question ERISA does not expressly provide for such a right so the court must determine if an implied right exists. Two cases decided by the Supreme Court in 1981 highlight the court’s reluctance to allow contribution under federal statutes that do not expressly provide for it. See Texas Industries, Inc. v. Radcliff Matls., Inc. 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981); NW Airlines v. Transport Workers Union, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981). These cases establish criteria for determining whether a right to contribution is embodied in a particular federal statute. A right to contribution may arise in either of two ways: first, through the affirmative creation of a right of action by Congress, either expressly or by clear implication; or second, through the power of federal courts to fashion a federal common law of contribution. Texas Industries, 451 U.S. at 638, 101 S.Ct. at 2066. In determining whether a federal statute (such as ERISA) that does not expressly provide for a right of contribution nonetheless implicitly creates such a" }, { "docid": "702620", "title": "", "text": "F.Supp. 19, 21 (D.N.M.1984), the court noted that “there exists no clear authority on the question of whether a § 1983 defendant may seek indemnity from his co-defendant.” In Northwest Airlines, Inc. v. Transport Workers Union of America, AFL-CIO, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981), a case cited in Valdez, the Supreme Court made it clear that courts are not free to read a cause of action for indemnity into statutes where no statutory basis exists for such a claim. There, the Court determined that no right to contribution exists among co-defendants under the Equal Pay Act or Title VII. Defendants have pointed to no provision of § 1983, nor any legislative history, to support their assertion that § 1983 provides for a right of contribution or indemnity. Therefore, any claims for indemnification against the third party defendants based directly upon § 1983 are impermissible. State Law Theories Rather than premising liability upon a § 1983 claim, the last seven claims seeking indemnification or contribution in the third party complaint are based on several state theories of liability. Valdez and Northwest Airlines, cited by the third party defendants as grounds for dismissing the defendants’ state law claims, are simply inapplicable to a situation where indemnification is based on state law claims. In both Valdez and Northwest Airlines the defendant sought contribution based upon federal statutes that did not provide for contribution. Here, in claims two through eight, the defendants seek indemnification based on state law claims, rather then on § 1983 directly. Hence, to the extent that the defendants seek indemnification or contribution based on state law theories, the claims are permissible provided that the claims satisfy the requirements of Rule 14(a) and the substantive requirements of state law. As an initial matter, the claims for indemnity do appear to be authorized under state law. In American Motorcycle Asso ciation v. Superior Court of Los Angeles County, 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899 (1978), the court held that a defendant may implead a third party on the grounds of comparative fault and recognized" }, { "docid": "702619", "title": "", "text": "To the extent that defendants may be trying to seek indemnity by way of the third party complaint based directly on § 1983, the third party defendants are correct in asserting that impleader is improper. First, it is well settled that a private party may only incur § 1983 liability if his actions are carried out ‘under color of state law’. Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961). In this case, there are no allegations that the third party defendants acted ‘under color of state law’. Rather, they merely sold an allegedly defective mattress to a governmental body. This, without more, is not an action taken ‘under color of state law’. Therefore, based on the record in this case, the third party defendants cannot be found to have violated § 1983. Moreover, even if there were allegations that the third party defendants acted ‘under color of state law’, defendants have not persuaded the court that § 1983 provides for indemnification. In Valdez v. City of Farmington, 580 F.Supp. 19, 21 (D.N.M.1984), the court noted that “there exists no clear authority on the question of whether a § 1983 defendant may seek indemnity from his co-defendant.” In Northwest Airlines, Inc. v. Transport Workers Union of America, AFL-CIO, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981), a case cited in Valdez, the Supreme Court made it clear that courts are not free to read a cause of action for indemnity into statutes where no statutory basis exists for such a claim. There, the Court determined that no right to contribution exists among co-defendants under the Equal Pay Act or Title VII. Defendants have pointed to no provision of § 1983, nor any legislative history, to support their assertion that § 1983 provides for a right of contribution or indemnity. Therefore, any claims for indemnification against the third party defendants based directly upon § 1983 are impermissible. State Law Theories Rather than premising liability upon a § 1983 claim, the last seven claims seeking indemnification or contribution in the third party complaint are" }, { "docid": "17862884", "title": "", "text": "a business realizes from a pension plan by the number of months during which that business was connected with the plan. Given that the plan existed for 190 months and that Avon became affiliated with the Group after 112 of these months, the Group suggests that 112/190 of the liability be allocated to Avon and the remainder to the Group. As often happens, these arguments confuse the concepts of indemnification and contribution. See W. Prosser, Law of Torts 310 (4th ed. 1971). To the extent that the Group seeks an allocation which requires each entity to pay its proportionate share of the liability it is requesting a right of contribution. See id. The notions of primary and secondary liability which underlie the Group’s claims, however, suggest that it is requesting indemnification. In any event, the real problem here is to allocate a liability which has been created by a federal statute. We find guidance in solving this problem in two recent Supreme Court cases — Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981), and Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981). Not surprisingly, these cases suggest that we first determine if the statute, either expressly or by implication, provides the method of allocation. See Texas Indus tries, 451 U.S. at 638, 101 S.Ct. at 2065 (A right to contribution under the antitrust laws may arise in one of the following ways: “first, through the affirmative creation of a right of action by Congress, either expressly or by clear implication; or, second, through the power of the federal courts to fashion a federal common law of contribution.”); Northwest Airlines, 451 U.S. at 90-91, 101 S.Ct. at 1580 (similar statement with respect to the question of a right to contribution under the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964). Factors relevant to the analysis include statutory language, legislative history, and policy considerations. Id. at 89, 95, 101 S.Ct. at 1582. The allocation to be made" }, { "docid": "5778903", "title": "", "text": "securities law at issue stated that the amount of recovery would be consideration paid less income received. See id. at 651-52, 658, 106 S.Ct. at 347-48, 3151; 15 U.S.C. § 171(2). This factor is not specifically relevant in the RICO context. Second, however, at common law tax benefits were not a direct product of the security. Randall, 478 U.S. at 658, 106 S.Ct. at 3151. And third, the statute seeks rescission plus deterrence, therefore, denying defendants the benefit of offsetting tax benefits generated by their illegal offering is an appropriate result. See also Freschi v. Grand Coal Venture, 767 F.2d 1041 (2d Cir.1985); vacated, 478 U.S. 1015, 106 S..Ct. 3325, 92 L.Ed.2d 731, on remand, 800 F.2d 305, reconsidered, 806 F.2d 17 (Supreme Court remanded to determine tax question in light of Randall and Sedima). Plaintiffs’ award should not be reduced by tax benefits, if any, received. Finally, the district court also erred in instructing the jury to award damages against each defendant separately and individually. Although there is little direct law on this point, there are numerous RICO criminal forfeiture cases which indicate that the nature of the RICO offense mandates joint and several liability. See United States v. Caporale, 806 F.2d 1487, 1506-09 (11th Cir.1986), cert. denied, 482 U.S. 917, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987); United States v. Benevento, 663 F.Supp. 1115, 1118-19 (S.D.N.Y.1987), 836 F.2d 129 (2d Cir.1988); see also Beneficial Standard Life Ins. Co. v. Madariaga, 851 F.2d 271, 272 (9th Cir.1988) (civil RICO liability assessed joint and severally); cf., Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 638-46, 101 S.Ct. 2061, 2065-70, 68 L.Ed.2d 500 (1981) (no right to contribution implied under Sherman or Clayton Act); Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 86-99, 101 S.Ct. 1571, 1577-80, 67 L.Ed.2d 750 (1981) (no right to contribution implied under Equal Pay Act or Title VII); Miller v. Affiliated Financial Corp., 624 F.Supp. 1003, 1004 (N.D.Ill.1985) (contribution is not available as to RICO liability, relying on Texas Industries and Northwest Airlines). Defendants all participated in the “enterprise” responsible for the RICO" } ]

[ { "docid": "22218381", "title": "", "text": "741 (5th ed. 1941) (Pomeroy). In addition, the public policy considerations that undergirded the in pari delicto defense were frequently construed as precluding the defense even where the plaintiff bore substantial fault for his injury: “[TJhere may be on the part of the court itself a necessity of supporting the public interests or public policy in many cases, however reprehensible the acts of the parties may be.” 1 Story 305. Notwithstanding these traditional limitations, many courts have given the in pari delicto defense a broad application to bar actions where plaintiffs simply have been involved generally in “the same sort of wrongdoing” as defendants. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S., at 138. In Perma Life, we emphasized “the inappropriateness of invoking broad common-law barriers to relief where a private suit serves important public purposes.” Ibid. That case involved a treble-damages action against a Midas Muffler franchisor by several of its dealers, who alleged that the franchise agreement created a conspiracy to restrain trade in violation of the Sherman and Clayton Acts. The lower courts barred the action on the grounds that the dealers, as parties to the agreement, were in pari delicto with the franchisor. In reversing that determination, the opinion for this Court emphasized that there was no indication that Congress had intended to incorporate the defense into the antitrust laws, which “are best served by insuring that the private action will be an ever-present threat to deter anyone contemplating [illegal] business behavior.” Id., at 139. Accordingly, the opinion concluded that “the doctrine of in pari delicto, with its complex scope, contents, and effects, is not to be recognized as a defense to an antitrust action.” Id., at 140. The opinion reserved the question whether a plaintiff who engaged in “truly complete involvement and participation in a monopolistic scheme” — one who “aggressively supported] and further[ed] the monopolistic scheme as a necessary part and parcel of it” — could be barred from pursuing a damages action, finding that the muffler dealers had relatively little bargaining power and that they had been coerced by the" } ]

[ { "docid": "6282556", "title": "", "text": "Life Mufflers does not preclude the defense of in pari delicto in the RICO context. The Court in Perma Life Mufflers premised its holding on the passive characteristics of antitrust participants. In that context, “participation [i]s not voluntary in any meaningful sense” when antitrust violators do not “seek each and every clause of the agreement,” but must accept questionably violative terms to obtain an otherwise attractive business opportunity. Perma Life Mufflers, 392 U.S. at 139, 88 S.Ct. at 1985. Perma Life Mufflers explicitly left open the possibility that a defense of active involvement could bar a complaint about an antitrust conspiracy, and our sister circuits have accordingly barred antitrust claims where the plaintiff was completely involved in the antitrust conspiracy. See THI-Hawaii, Inc. v. First Commerce Fin. Corp., 627 F.2d 991, 995 (9th Cir.1980) (holding that there is “complete involvement” where “the illegal conspiracy would not have been formed but for [the plaintiffs] participation” and barring recovery by a plaintiff who negotiated, prepared, and earned revenues from an exclusive sales agreement with the defendant); Columbia Nitrogen Corp. v. Royster Co., 451 F.2d 3, 15-16 (4th Cir.1971) (“[W]hen parties of substantially equal economic strength mutually participate in the formulation and execution of the scheme and bear equal responsibility for the consequent restraint of trade, each 'is barred from seeking treble damages from the other.”); cf. Premier Elec. Constr. Co. v. Miller-Davis Co., 422 F.2d 1132, 1138 (7th Cir.1970) (“[W]e believe that Perma Life holds only that plaintiffs who do not bear equal responsibility for creating and establishing an illegal scheme, or who are required by economic pressures to accept such an agreement, should not be barred from recovery simply because they are participants.”). In contrast with antitrust violations, a federal RICO violation requires affirmative and deliberate participation. A violation of RICO requires that the defendants “participated, either directly or indirectly, in the conduct of the affairs of the enterprise ... through a pattern of racketeering activity.” United States v. Starrett, 55 F.3d 1525, 1541 (11th Cir.1995); 18 U.S.C. § 1962(c). A ‘“pattern of racketeering activity’ requires at least two acts of" }, { "docid": "14999703", "title": "", "text": "“[E]ven if the establishment of this dealership could constitute monopolization, the plaintiffs cannot recover for it. By their own allegations, plaintiffs are the originating, active persons responsible for its establishment. Although the Supreme Court abolished in pari delicto as a defense in antitrust cases, the court [sic] indicated that a high degree of involvement in the illegal act could constitute a defense.” 529 F.2d at 174 (citations omitted). The Fifth Circuit in Greene v. General Foods, 517 F.2d 635 (5 Cir. 1975), broadly suggested that it would not maintain any in pari delicto type defense, but it expressly did not rule on this point. The court stated: “We have no occasion here to consider to what extent the 'in pari delicto’ doctrine will continue to function in private antitrust litigation, if indeed the plaintiff is equally responsible, or a co-adventurer. * * * Even if we accept General Foods’ argument that in pari delicto and closely related equitable defenses such as consent and unclean hands are still viable after Perma Life —an argument we seriously question — the record shows a great disparity between the plaintiff and the defendant . . . .” 517 F.2d at 646-47. Cf. Kestenbaum v. Falstaff Brewing Corp., 514 F.2d 690 (5 Cir. 1975) (while no bar, plaintiff’s participation may reduce damages). Other circuits have emphasized that the plaintiff’s participation must be in the formulation stage of a conspiracy to bar recovery. In South-East Coal Co. v. Consolidation Coal Co., 434 F.2d 767 (6 Cir. 1970), cert. denied, 402 U.S. 983, 91 S.Ct. 1682, 29 L.Ed.2d 149 (1971), the Sixth Circuit approved an instruction to the effect the plaintiff could not recover if “equally responsible with defendants in the formation of said conspiracy.” 434 F.2d at 784. See also Columbia Nitrogen Corp. v. Royster Co., 451 F.2d 3 (4 Cir. 1971). Such decisions seem to temper Perma Life’s apparent abolition of the in pari delicto defense. See ABA Antitrust Developments 298 (2d ed. 1975). We agree that under certain circumstances a plaintiff may be barred from recovery, but believe that the mandate of Perma Life" }, { "docid": "19545617", "title": "", "text": "and injury. A. The Computer Fraud and Abuse Act and Other Cyber-Security Laws Defendants argue that Authenticom's Sherman Act claims fail at the start because they seek to vindicate an illegal trade through an antitrust lawsuit. Defendants contend, specifically, that the Complaint affirmatively pleads Authenticom's violations of the Computer Fraud and Abuse Act (\"CFAA\"), 18 U.S.C. § 1030 et seq. , the Wisconsin Cyber Crimes Act (\"WCCA\"), Wis. Stat. § 943.70, and other cyber-security laws. The CFAA, for example, imposes criminal liability on anyone who \"intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains...information from any protected computer.\" 18 U.S.C. § 1030(a)(2)(c). Defendants argue that the Complaint makes clear that Authenticom did just that by accessing DMSs (protected computers) and pulling data without authorization (from Defendants). Having admitted as much, Defendants submit, Authenticom cannot now seek refuge under the Sherman Act. The Court disagrees. Courts have generally held that a plaintiff's wrongdoing is not a defense to an antitrust suit. The Supreme Court decided in Perma Life Mufflers, Inc. v. Int'l Parts Corp. , 392 U.S. 134, 140, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968) (plurality), that the in pari delicto doctrine-a common-law defense that curbs or bars recovery where the claimant is also at fault for her injury-\"is not to be recognized as a defense to an antitrust action.\" As the Seventh Circuit later put it, \"[p]roof of the plaintiff's unrelated unlawful conduct is not a valid in pari delicto defense to an antitrust charge.\" Pinto Trucking Serv., Inc. v. Motor Dispatch, Inc. , 649 F.2d 530, 534 n. 5 (7th Cir. 1981) ; see also Gen. Leaseways, Inc. v. Nat'l Truck Leasing Ass'n , 830 F.2d 716, 720 (7th Cir. 1987) (\"Strictly speaking, the common-law form of the [in pari delicto] defense is not available to defendants in antitrust lawsuits.\"); see also Phillip E. Areeda, Herbert Hovenkamp, ANTITRUST LAW: AN ANALYSIS OF ANTITRUST PRINCIPLES AND THEIR APPLICATION ¶ 361 (3rd and 4th eds. 2010- 2017). Memorex Corp. v. Int'l Bus. Machs. Corp. , 555 F.2d 1379 (9th Cir. 1977), is also illustrative. In that" }, { "docid": "12567740", "title": "", "text": "in federal antitrust litigation. See Perma Life Mufflers v. International Parts Co., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968). The rationale for the Perma Life holding rests on policy considerations of encouraging enforcement of the antitrust laws, even where the plaintiff is perhaps partly to blame for an allegedly anticompetitive scheme. The Court in Per-ma Life, however, left open the question whether “truly complete involvement and participation in a monopolistic scheme could ever be a basis, wholly apart from the idea of in.pari delicto, for barring a plaintiff’s cause of action, . . . ” 392 U.S. at 140, 88 S.Ct. at 1985. The Court left the issue open because the facts of Perma Life did-not indicate complete involvement on the part of the plaintiffs there. Several circuits, including our own, have determined that “complete involvement” does constitute a defense to a treble damages claim in an antitrust action. See, Memorex Corp. v. IBM, 555 F.2d 1379 (9th Cir. 1977); Javelin Corp. v. Uniroyal, Inc., 546 F.2d 276 (9th Cir. 1976), cert. denied, 431 U.S. 938, 97 S.Ct. 2651, 53 L.Ed.2d 256 (1977); see also, e. g., Columbia Nitrogen Corporation v. Royster Company, 451 F.2d 3 (4th Cir. 1971); Premier Electric Construction Co. v. Miller-Davis Co., 422 F.2d 1132 (7th Cir.), cert. denied, 400 U.S. 828, 91 S.Ct. 56, 27 L.Ed.2d 58 (1970). The formulation of the “complete involvement” defense reflects a somewhat uneasy balance between the compelling policy of enforcement of the antitrust laws and the natural desire of any court to recognize the equities as between the parties. In this circuit, a defendant espousing the complete involvement defense must meet the burden of the “but for” test. A plaintiff’s recovery is not barred unless the illegal conspiracy would not have been formed but for its participation. See Javelin Corp. v. Uniroyal, supra, at 279. As the court in Javelin Corp. noted: “The ‘but for’ standard places a high burden of proof upon any defendant seeking to bar the plaintiff’s suit on the basis of joint participation. But the plaintiff is suing not only in its" }, { "docid": "13690061", "title": "", "text": "the rather unusual circumstance of this case. Gatt’s complaint, its appellate brief, and the Gattini affidavit make clear that Gatt coordinated with PMC to make sham bids to rig the bidding process to its benefit. From Gatt’s own hand there can be no doubt that there was no coercion here. Gatt participated in the scheme for several years and was motivated by its own self interest. Gattini Aff. ¶¶ 27-28. And its participation in the scheme paid off. According to Gatt, its business grew rapidly from 2002 to 2007, and it became “one of the most productive Vertex dealers in the United States.” Am. Compl. ¶ 35. Furthermore, application of the in pari delicto doctrine will not interfere with the policy goals underlying the Sherman Act, as suggested by the Majority. Indeed, Gatt’s recovery under the Sherman Act could not further the act’s essential purpose: “safeguarding consumer welfare.” Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton Coll., 128 F.3d 59, 63 (2d Cir.1997). Instead, it would have the perverse effect of redistributing ill-gotten gains among similarly situated conspirators. To entertain a dispute under these circumstances would be a waste of valuable judicial resources and offend the public interest. For the foregoing reasons, I would dismiss on the basis of in pari delicto. . We are not compelled to determine whether Gatt has antitrust standing before addressing the doctrine of in pari delicto. Antitrust standing involves an analysis of prudential considerations aimed at \"avoid[ing] counterproductive use of antitrust laws in ways that could harm competition rather than protecting it.” Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir.2007). In this vein, it is distinct from Article III standing, which must be assessed before reaching the in pari delicto defense. Cf. In re Senior Cottages of Am., LLC, 482 F.3d 997, 1002-03 (8th Cir.2007); see also Kirschner v. KPMG LLP, 15 N.Y.3d 446, 459 n. 3, 912 N.Y.S.2d 508, 938 N.E.2d 941 (2010). . I agree with the Majority that we may consider the Gattini Affidavit. Generally, the harm to the plaintiff when a court" }, { "docid": "13690062", "title": "", "text": "among similarly situated conspirators. To entertain a dispute under these circumstances would be a waste of valuable judicial resources and offend the public interest. For the foregoing reasons, I would dismiss on the basis of in pari delicto. . We are not compelled to determine whether Gatt has antitrust standing before addressing the doctrine of in pari delicto. Antitrust standing involves an analysis of prudential considerations aimed at \"avoid[ing] counterproductive use of antitrust laws in ways that could harm competition rather than protecting it.” Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir.2007). In this vein, it is distinct from Article III standing, which must be assessed before reaching the in pari delicto defense. Cf. In re Senior Cottages of Am., LLC, 482 F.3d 997, 1002-03 (8th Cir.2007); see also Kirschner v. KPMG LLP, 15 N.Y.3d 446, 459 n. 3, 912 N.Y.S.2d 508, 938 N.E.2d 941 (2010). . I agree with the Majority that we may consider the Gattini Affidavit. Generally, the harm to the plaintiff when a court considers material extraneous to a complaint without converting the claim into one for summary judgment is the lack of notice that the material may be considered. But \"[wjhere plaintiff has actual notice of all the information ... and has relied upon [the] documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated.” Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991). Gatt relied on the Gattini affidavit in its briefs to the district court and on appeal, as well as during oral argument. The information and documents contained therein are known by Gatt and were employed by it in framing the complaint. There is no reason we should not consider it on appeal. . See Perma Life Mufflers, Inc., 392 U.S. at 146, 88 S.Ct. 1981 (White, J., concurring) (\"I would deny recovery where plaintiff and defendant bear substantially equal responsibility for injury resulting to one of [the co-conspirators] ....”); id. at 147, 88 S.Ct. 1981 (Fortas, /., concurring) (Suit" }, { "docid": "13690043", "title": "", "text": "broad-brush application of the in pari delicto defense in private civil antitrust cases, reasoning that antitrust interests “are best served by insuring that the private action will be an ever-present threat to deter anyone contemplating [illegal] behavior.” Perma Life Mufflers, Inc. v. Int’l Parts Corp., 392 U.S. 134, 139, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968), overruled on other grounds by Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 765, 777, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984). Caution seems warranted in developing contours for the application of such a defense in this context, where private actions play a significant role in the enforcement scheme, as evidenced by Congress’s authorization of treble damages awards to prevailing plaintiffs. This is particularly so on an appeal from the grant of a motion to dismiss, where the factual record is undeveloped. Our Court has not to date applied the in pari delicto defense in private antitrust litigation. To the contrary, we have recognized that “a plaintiffs own anticompeti-tive conduct generally cannot be raised as a defense to liability in an antitrust action.” See United States Football League v. Nat’l Football League, 842 F.2d 1335, 1369 (2d Cir.1988). In that case, where in pari delicto was not raised by the defendant, we suggested in dicta that a plaintiffs anticompetitive behavior “may” be an available defense in an antitrust case if “the plaintiff was present at the creation and .had a complete and continuing involvement in the monopolization scheme.” Id. And, although several of our sister circuits have recognized an in pari delicto defense in civil antitrust litigation, they have generally done so on appeal from summary judgment or after trial, when the extent and circumstances of the culpable plaintiffs involvement have been factually developed, and the possibility that the plaintiffs behavior was motivated by economic duress — a factor that could relieve the plaintiff of an in pari delicto bar — has been examined. See Javelin Corp. v. Uniroyal, Inc., 546 F.2d 276, 279 (9th Cir.1976) (summary judgment); Sullivan v. Nat’l Football League, 34 F.3d 1091, 1107 (1st Cir.1994) (trial); General Leaseways, Inc." }, { "docid": "3855504", "title": "", "text": "overcharge that was passed on, we think the alternative, adopting no general co-conspirator exception, is less desirable. Cf. In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d 1144, 1169 (3d Cir.1993) (“[W]hile complex apportionment problems are implicated here, we do not hold that litigation must be avoided solely because it might be difficult to ascertain damages. Injured parties cannot be penalized and left without recourse because measurement of their damages is difficult.”). The Illinois Brick Court was concerned with promoting “the longstanding policy of encouraging vigorous private enforcement of the antitrust laws.” 431 U.S. at 745, 97 S.Ct. 2061. We are unwilling to hold that if initial sellers and “completely involved” direct purchasers conspire, then no plaintiff outside the conspiracy may sue the initial seller for damages. 2. Is there a “complete involvement” defense? We hold that a general co-conspirator exception would only exist if the complete involvement defense barred the middlemen from bringing a claim against their former co-conspirator — the manufacturer. However, our Court has not decided whether the complete involvement defense even exists. We thus examine this question. In Perma Life, the Supreme Court held that “the doctrine of in pari delicto ... is not to be recognized as a defense to an antitrust action.” 392 U.S. at 140, 88 S.Ct. 1981. But as previously mentioned, the Court expressly did “not decide ... whether ... truly complete involvement and participation in a monopolistic scheme could ever be a basis ... for barring a plaintiffs cause of action.” Id. Further, in concurrences, five members of the Perma Life Court favored barring suit by antitrust plaintiffs who were involved in a conspiracy at a high enough level. Further, every Court of Appeals that has decided the issue has held that antitrust plaintiffs who were involved in a conspiracy at a requisite level are barred from suing. See, e.g., Sullivan v. National Football League, 34 F.3d 1091, 1107 (1st Cir.1994); Columbia Nitrogen Corp. v. Royster Co., 451 F.2d 3, 16 (4th Cir.1971); Gen. Leaseways, Inc. v. Nat’l Truck Leasing Ass’n, 830 F.2d 716, 720-23 (7th Cir.1987); Javelin Corp." }, { "docid": "6530780", "title": "", "text": "supplemental instruc tions and comments directed to the jury-after deliberations had commenced resulted in a coerced and legally improper verdict. II General Leaseways argues that the Association failed to present “more than a scintilla” of evidence of General Lease-ways’ responsibility for maintenance of the illegal territorial restriction scheme. The Association describes the evidence of General Leaseways’ fault as “overwhelming.” In the alternative, General Leaseways argues that the jury instruction on the fault-based defense was defective because it did not include an additional sentence that General Leaseways had submitted. A. The fault-based defense raised by the Association is a variant of the common-law doctrine of “in pari delicto,” which literally means “in equal fault.” Strictly speaking, the common-law form of the defense is not available to defendants in antitrust lawsuits. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968). In Perma Life, the Supreme Court held that the availability of a broadly-applied defense, based on the involvement of antitrust plaintiffs in “some of the same sort of wrongdoing” as the defendants, would undermine the public interest in assuring the continual threat of private action as a deterrent to antitrust violations. 392 U.S. at 138-39, 88 S.Ct. at 1984. The Perma Life Court specifically declined to discuss the level of voluntary participation in unlawful conduct that would bar a plaintiff’s recovery, because it found that the record before it clearly demonstrated that the plaintiffs’ involvement in maintaining the illegal restrictions at issue in that case was the result of economic coercion. Id. at 140-41, 88 S.Ct. at 1985-86. Some differences have arisen among the courts of appeals on the formulation of a fault-based defense standard to be applied in antitrust cases. Compare Javelin Corp. v. Uniroyal, Inc., 546 F.2d 276, 279 (9th Cir.1976) (plaintiff “barred from recovery only when the illegal conspiracy would not have been formed but for ” its participation) (emphasis added), cert. denied, 431 U.S. 938, 97 S.Ct. 2651, 53 L.Ed.2d 256 (1977) with Columbia Nitrogen Corp. v. Royster Co., 451 F.2d 3, 15-16 (4th Cir.1971) (recovery barred “when parties" }, { "docid": "23701987", "title": "", "text": "paid Leesona. The district court rejected defendants’ proffer but excluded the kickbacks received by Burlington from the damage award before trebling. In our view, the district court ruled correctly. In essence defendants raise the affirmative defense of in pari delicto. See Columbia Nitrogen Corp. v. Royster Co., 451 F.2d 3, 15-16 (4 Cir. 1971). The nature of that defense is not altered by the fact that defendants cast it in the language of “damage causation,” arguing that Burlington caused its own injury and is thus precluded from recovering damages. Significantly, successful assertion of the in pari delicto defense does not merely reduce a plaintiff’s compensable damages; instead, it bars the plaintiff from any recovery. See id. at 16. Thus the defense goes to the issue of liability — an issue finally settled in this case — rather than to the extent of the damages. We hold therefore that proof of Burlington’s alleged misconduct was not timely and was properly excluded. We see no reason to reopen the liability phase of the case at this late date. Even if the in pari delicto defense could properly be raised in the damages phase of the trial, defendants could not successfully avail themselves of the doctrine. Proof that Burlington contrived to elude defendants’ royalty exactions and thus secured a competitive advantage in the throwster industry is not enough to establish the defense. Rather, the defense would require proof that Burlington “mutually participate^] in the formulation and execution of the scheme and [bore] equal responsibility for the consequent restraint of trade.” Columbia Nitrogen Corp., 451 F.2d at 15-16. Defendants have produced no proof in the liability phase of the trial that Burlington played any role in the collusive settlement by which they fixed royalties and violated the antitrust laws; nor do they allege it now. These omissions are fatal to the in pari delicto defense, especially since that doctrine retains only narrow application in the antitrust setting after Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968). See id. at 140, 88 S.Ct. at 1985" }, { "docid": "13984179", "title": "", "text": "976 (2d Cir. 1975); Columbia Nitrogen Corp. v. Royster Co., 451 F.2d 3, 15-16 (4 Cir. 1971); see also Javeline Corp. v. Uniroyal, Inc., 546 F.2d 276, 278-79 (9 Cir. 1976); Dreibus v. Wilson, 529 F.2d 170, 174 (9 Cir. 1975); ABA Antitrust Law Developments 297-99 (2d ed. 1975). Furthermore, the partial rejection of the in pari delicto defense in Perma Life does not require that we recognize a right of contribution among antitrust coconspirators. There is an obvious and fundamental difference between a rule that bars suit by a plaintiff who in any way participated in the antitrust violation and a rule that forbids a defendant from obtaining contribution from his fellow wrongdoers. A rule barring any culpable plaintiff diminishes the deterrent effect of the antitrust laws by reducing the pool of potential private attor neys general who can instigate costly and uncertain antitrust litigation. However, as we previously noted, a rule prohibiting contribution among antitrust coconspirators not only does not frustrate deterrence but may very well enhance the statutes’ deterrent effect by preventing a defendant from cutting its losses. Fourth, Texas Industries asserts that the denial of contribution in an antitrust context is inconsistent with the allowance of contribution under other federal statutes. A number of cases have recognized a right of contribution under certain provisions of the federal securities laws that do not expressly provide for such a right. Gould v. American Hawaiian Steamship Co., 387 F.Supp. 163 (D.Del.1974), vacated on other grounds, 535 F.2d 761 (3d Cir. .1976); Alexander & Baldwin, Inc. v. Peat, Marwick, Mitchell & Co., 385 F.Supp. 230 (S.D.N.Y. 1970), aff'd per curiam, 442 F.2d 1376 (2d Cir. 1971); de Haas v. Empire Petroleum Co., 286 F.Supp. 809 (D.Colo.1968), modified on other grounds, 435 F.2d 1223 (10 Cir. 1970). As these cases have recognized, however, both the Securities Act of 1933 and the Exchange Act of 1934 make express statutory provision for contribution, and the allowance of contribution in these cases can be explained under the general principle that the securities laws are to be administered in pari materia. Globus, Inc. v. Law" }, { "docid": "13690044", "title": "", "text": "liability in an antitrust action.” See United States Football League v. Nat’l Football League, 842 F.2d 1335, 1369 (2d Cir.1988). In that case, where in pari delicto was not raised by the defendant, we suggested in dicta that a plaintiffs anticompetitive behavior “may” be an available defense in an antitrust case if “the plaintiff was present at the creation and .had a complete and continuing involvement in the monopolization scheme.” Id. And, although several of our sister circuits have recognized an in pari delicto defense in civil antitrust litigation, they have generally done so on appeal from summary judgment or after trial, when the extent and circumstances of the culpable plaintiffs involvement have been factually developed, and the possibility that the plaintiffs behavior was motivated by economic duress — a factor that could relieve the plaintiff of an in pari delicto bar — has been examined. See Javelin Corp. v. Uniroyal, Inc., 546 F.2d 276, 279 (9th Cir.1976) (summary judgment); Sullivan v. Nat’l Football League, 34 F.3d 1091, 1107 (1st Cir.1994) (trial); General Leaseways, Inc. v. Nat’l Truck Leasing Ass’n, 830 F.2d 716, 720-24 (7th Cir.1987) (trial); Columbia Nitrogen Corp. v. Royster Co., 451 F.2d 3, 15-16 (4th Cir.1971) (trial). Cf. Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 311 n. 21, 105 S.Ct. 2622, 86 L.Ed.2d 215 (1985) (describing as “inappropriate[ ]” the undertaking to “resolve[ ] the question of [the plaintiffs’] fault solely on the basis of the allegations set forth in the complaint”). In short, because we conclude that Gatt lacks antitrust standing to pursue its antitrust claims, and the factual record is undeveloped, we do not reach the question whether some form of the doctrine of in pari delicto should be adopted in our Circuit for application in § 4 actions, and, if so, whether it would bar Gatt’s claims. B. Donnelly Act Claim New York’s Donnelly Act prohibits “[e]very contract, agreement, ar-rangement or combination whereby ... competition ... may be restrained.” N.Y. Gen. Bus. Law § 340(1). The New York Court of Appeals has held that the Don-nelly Act, which was modeled on" }, { "docid": "13690045", "title": "", "text": "v. Nat’l Truck Leasing Ass’n, 830 F.2d 716, 720-24 (7th Cir.1987) (trial); Columbia Nitrogen Corp. v. Royster Co., 451 F.2d 3, 15-16 (4th Cir.1971) (trial). Cf. Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 311 n. 21, 105 S.Ct. 2622, 86 L.Ed.2d 215 (1985) (describing as “inappropriate[ ]” the undertaking to “resolve[ ] the question of [the plaintiffs’] fault solely on the basis of the allegations set forth in the complaint”). In short, because we conclude that Gatt lacks antitrust standing to pursue its antitrust claims, and the factual record is undeveloped, we do not reach the question whether some form of the doctrine of in pari delicto should be adopted in our Circuit for application in § 4 actions, and, if so, whether it would bar Gatt’s claims. B. Donnelly Act Claim New York’s Donnelly Act prohibits “[e]very contract, agreement, ar-rangement or combination whereby ... competition ... may be restrained.” N.Y. Gen. Bus. Law § 340(1). The New York Court of Appeals has held that the Don-nelly Act, which was modeled on the Sherman Act, “should generally be construed in light of Federal precedent and given a different interpretation only where State policy, differences in the statutory language or the legislative history justify such a result.” X.L.O. Concrete Corp. v. Rivergate Corp., 83 N.Y.2d 513, 518, 611 N.Y.S.2d 786, 634 N.E.2d 158 (1994) (internal quotation marks omitted). The Sherman Act provides a cause of action for “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws,” 15 U.S.C. § 15(a), while the Donnelly Act similarly permits suit by “any person who shall sustain damages by reason of any violation of this section,” N.Y. Gen. Bus. Law § 340(5). We see no reason — nor has Gatt provided any — -to interpret the Donnelly Act differently than the Sherman Act with regard to antitrust standing. Cf. Continental Guest Servs. Corp. v. Int’l Bus Servs., Inc., 92 A.D.3d 570, 939 N.Y.S.2d 30, 33-34 (1st Dep’t 2012) (stating that Donnelly Act claims should have been dismissed for lack of antitrust" }, { "docid": "3855505", "title": "", "text": "defense even exists. We thus examine this question. In Perma Life, the Supreme Court held that “the doctrine of in pari delicto ... is not to be recognized as a defense to an antitrust action.” 392 U.S. at 140, 88 S.Ct. 1981. But as previously mentioned, the Court expressly did “not decide ... whether ... truly complete involvement and participation in a monopolistic scheme could ever be a basis ... for barring a plaintiffs cause of action.” Id. Further, in concurrences, five members of the Perma Life Court favored barring suit by antitrust plaintiffs who were involved in a conspiracy at a high enough level. Further, every Court of Appeals that has decided the issue has held that antitrust plaintiffs who were involved in a conspiracy at a requisite level are barred from suing. See, e.g., Sullivan v. National Football League, 34 F.3d 1091, 1107 (1st Cir.1994); Columbia Nitrogen Corp. v. Royster Co., 451 F.2d 3, 16 (4th Cir.1971); Gen. Leaseways, Inc. v. Nat’l Truck Leasing Ass’n, 830 F.2d 716, 720-23 (7th Cir.1987); Javelin Corp. v. Uniroyal, Inc., 546 F.2d 276, 279 (9th Cir.1976). But cf. Greene v. Gen. Foods Corp., 517 F.2d 635, 646-47 (5th Cir.1975) (“seriously questioning]” whether antitrust plaintiffs should ever be barred from suing because of their “unclean hands”). In Link, our Court recognized that co-conspirators who were completely involved in a conspiracy might be barred from suing. 788 F.2d at 932. However, we did not decide the issue because we concluded that the co-conspirators in that case were not completely involved in the conspiracy. Id. We recognize that the weight of authority favors barring suit by antitrust plaintiffs who were involved in a conspiracy at a high enough level. We also recognize, however, the strong policy argument in favor of allowing suits by co-conspirators even when their involvement in a conspiracy was large. The Ninth Circuit has recognized that “[t]he formulation of the ‘complete involvement’ defense reflects a somewhat uneasy balance between the compelling policy of enforcement of the antitrust laws and the natural desire of any court to recognize the equities as between parties.”" }, { "docid": "13690058", "title": "", "text": "part and parcel of it” — could be barred from pursuing a damages action. Id. at 140, 88 S.Ct. 1981. In concurrences, five members of the Perma Life Court favored barring suit by antitrust plaintiffs who were substantially involved in the conspiracy. The Court’s subsequent decision in Bateman Eichler reinforced this view. In Bateman Eichler; the Court addressed whether in pari delicto is an available defense to a private action for damages brought under the federal securities laws. Bateman Eichler, 472 U.S. at 301, 105 S.Ct. 2622. After noting that the “views expressed in Perma Life apply with full force to implied causes of action under the federal securities laws,”- the Court held that a private action for damages under federal securities laws may be barred under the doctrine of in pari delicto where “(1) as a direct result of his own actions, the plaintiff bears at least substantially equal responsibility for the violations he seeks to redress, and (2) preclusion of suit would not significantly interfere with the effective enforcement of the securities laws and protection of the investing public.” Id. at 310-11,105 S.Ct. 2622. In light of the Court’s reasoning, every one of our sister circuits to consider the issue has held that antitrust plaintiffs who actively participate in the illegal scheme and who are substantially ■ at fault are barred from suit. See, e.g., Sullivan v. Nat’l Football League, 34 F.3d 1091, 1107 (1st Cir.1994); Gen. Leaseways, Inc. v. Nat’l Truck Leasing Ass’n, 830 F.2d 716, 720-23 (7th Cir.1987); Javelin Corp. v. Uniroyal, Inc., 546 F.2d 276, 279 (9th Cir.1976); Columbia Nitrogen Corp. v. Royster Co., 451 F.2d 3, 16 (4th Cir.1971). Although we have yet to address the issue, we have recognized that “[t]he [in pari delicto] defense may be available ... when the plaintiff was present at the creation and had a complete and continuing involvement in the monopolization scheme.” U.S. Football League v. Nat’l Football League, 842 F.2d 1335, 1369 (2d Cir.1988). This case is certainly a good candidate for the view that a cause of action under the Sherman Act is barred where" }, { "docid": "13690042", "title": "", "text": "own economic self-interest — not because it recognized the error of its ways. Thus, Gatt’s own behavior seriously undercuts' its claim to be a suitable plaintiff for § 4 standing purposes. In sum, because Gatt has not suffered antitrust injury and has failed to satisfy any of the “efficient enforcer” factors, it lacks antitrust standing to pursue damages for the violations it alleges occurred in this case. We thus affirm the district court’s dismissal of Gatt’s Sherman Act § 1 claims. 3. In pari delicto Defendants,- and our concurring colleague, have argued that we should deploy the equitable doctrine of in pari delicto (“in equal fault”) to erect a complete and simple bar to Gatt’s claims, and there is some appeal to that approach. Indeed, elements of the efficient enforcer analysis that we have discussed above do overlap with the standard in pari delicto analysis, and Gatt’s participation in the scheme would make it a particularly dubious recipient of treble' damages for its belated and questionable enforcement efforts. The Supreme Court has cautioned, however, against broad-brush application of the in pari delicto defense in private civil antitrust cases, reasoning that antitrust interests “are best served by insuring that the private action will be an ever-present threat to deter anyone contemplating [illegal] behavior.” Perma Life Mufflers, Inc. v. Int’l Parts Corp., 392 U.S. 134, 139, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968), overruled on other grounds by Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 765, 777, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984). Caution seems warranted in developing contours for the application of such a defense in this context, where private actions play a significant role in the enforcement scheme, as evidenced by Congress’s authorization of treble damages awards to prevailing plaintiffs. This is particularly so on an appeal from the grant of a motion to dismiss, where the factual record is undeveloped. Our Court has not to date applied the in pari delicto defense in private antitrust litigation. To the contrary, we have recognized that “a plaintiffs own anticompeti-tive conduct generally cannot be raised as a defense to" }, { "docid": "12567739", "title": "", "text": "to bring them to the attention of the district court. Because there is nothing before us to indicate that the use of summary judgment should be approached in this case with any greater caution than normal, we hold that on this record Poller did not bar the granting of the defendants’ motion. B. Complete Involvement The district court was correct in concluding that no genuine issue of material fact existed, given the failure of THI to controvert any of the factual assertions contained in the defendants’ affidavits. Its only task, therefore, was to determine whether the defendants were entitled to judgment as a matter of law. The district court concluded that defendants were so entitled on the alternative grounds that the lease rendered no substantial anticompetitive effect and that THI’s “complete involvement” in the allegedly illegal scheme barred it from recovering. We affirm on the latter ground, and express no opinion on the competitive impact of the lease. The Supreme Court has determined that the common law defense of in pari delicto has no place in federal antitrust litigation. See Perma Life Mufflers v. International Parts Co., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968). The rationale for the Perma Life holding rests on policy considerations of encouraging enforcement of the antitrust laws, even where the plaintiff is perhaps partly to blame for an allegedly anticompetitive scheme. The Court in Per-ma Life, however, left open the question whether “truly complete involvement and participation in a monopolistic scheme could ever be a basis, wholly apart from the idea of in.pari delicto, for barring a plaintiff’s cause of action, . . . ” 392 U.S. at 140, 88 S.Ct. at 1985. The Court left the issue open because the facts of Perma Life did-not indicate complete involvement on the part of the plaintiffs there. Several circuits, including our own, have determined that “complete involvement” does constitute a defense to a treble damages claim in an antitrust action. See, Memorex Corp. v. IBM, 555 F.2d 1379 (9th Cir. 1977); Javelin Corp. v. Uniroyal, Inc., 546 F.2d 276 (9th Cir. 1976), cert." }, { "docid": "13984178", "title": "", "text": "J., concurring) (plaintiff barred where he and defendant bear “substantially equal responsibility” for injury); id. at 147, 88 S.Ct. 1981, 1989 (Fortas, J., concurring in the result) (plaintiff barred where “the fault of the parties is reasonably within the same scale”); id. at 149, 88 S.Ct. at 1989 (Marshall, J., concurring in the result) (plaintiff barred where he “actively participated in the formation and implementation of an illegal scheme”); id. at 154, 88 S.Ct. 1981 (Harland, J., and Stewart, J., concurring in part and dissenting in part) (plaintiff barred who violated the law “in cooperation with defendant”). Subsequent lower court opinions have concluded that Perma Life refuses an in pari delicto defense only to those “plaintiffs who do not bear equal responsibility for creating and establishing an illegal scheme, or who are required by economic pressures to accept such an agreement.” Premier Electrical Constr. Co. v. Miller Davis Co., 422 F.2d 1132, 1138 (7 Cir.), cert. denied, 400 U.S. 828, 91 S.Ct. 56, 27 L.Ed.2d 58 (1970). See Bernstein v. Universal Pictures, Inc., 517 F.2d 976 (2d Cir. 1975); Columbia Nitrogen Corp. v. Royster Co., 451 F.2d 3, 15-16 (4 Cir. 1971); see also Javeline Corp. v. Uniroyal, Inc., 546 F.2d 276, 278-79 (9 Cir. 1976); Dreibus v. Wilson, 529 F.2d 170, 174 (9 Cir. 1975); ABA Antitrust Law Developments 297-99 (2d ed. 1975). Furthermore, the partial rejection of the in pari delicto defense in Perma Life does not require that we recognize a right of contribution among antitrust coconspirators. There is an obvious and fundamental difference between a rule that bars suit by a plaintiff who in any way participated in the antitrust violation and a rule that forbids a defendant from obtaining contribution from his fellow wrongdoers. A rule barring any culpable plaintiff diminishes the deterrent effect of the antitrust laws by reducing the pool of potential private attor neys general who can instigate costly and uncertain antitrust litigation. However, as we previously noted, a rule prohibiting contribution among antitrust coconspirators not only does not frustrate deterrence but may very well enhance the statutes’ deterrent effect by preventing" }, { "docid": "13690059", "title": "", "text": "and protection of the investing public.” Id. at 310-11,105 S.Ct. 2622. In light of the Court’s reasoning, every one of our sister circuits to consider the issue has held that antitrust plaintiffs who actively participate in the illegal scheme and who are substantially ■ at fault are barred from suit. See, e.g., Sullivan v. Nat’l Football League, 34 F.3d 1091, 1107 (1st Cir.1994); Gen. Leaseways, Inc. v. Nat’l Truck Leasing Ass’n, 830 F.2d 716, 720-23 (7th Cir.1987); Javelin Corp. v. Uniroyal, Inc., 546 F.2d 276, 279 (9th Cir.1976); Columbia Nitrogen Corp. v. Royster Co., 451 F.2d 3, 16 (4th Cir.1971). Although we have yet to address the issue, we have recognized that “[t]he [in pari delicto] defense may be available ... when the plaintiff was present at the creation and had a complete and continuing involvement in the monopolization scheme.” U.S. Football League v. Nat’l Football League, 842 F.2d 1335, 1369 (2d Cir.1988). This case is certainly a good candidate for the view that a cause of action under the Sherman Act is barred where (1) the plaintiff is an active and willing participant in the illegal activity, and (2) dismissing the suit does not significantly interfere with the policy goals underlying the act. The record is plain that Gatt was an active and willing participant in the bid-rigging scheme. Gatt readily, and repeatedly, admits to its participation in, and benefit from, the coordinated effort to defraud various New York State and City governmental agencies. Gatt admits that there were numerous instances in which it sought the assistance of PMC to coordinate sham bids to enrich Gatt from government contracts. Indeed, Gatt’s president and owner discusses at length how Gatt engaged in bid-rigging “in more than one hundred instances” and reaped the benefits therefrom. Gattini Aff. ¶ 28. The Majority is reluctant to apply the doctrine of in pari delicto because, in its view, the factual record is not developed and warns that other circuits have considered the application of in pari delicto following a trial or summary judgment. While that word of caution does make general sense it ignores" }, { "docid": "19545618", "title": "", "text": "Parts Corp. , 392 U.S. 134, 140, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968) (plurality), that the in pari delicto doctrine-a common-law defense that curbs or bars recovery where the claimant is also at fault for her injury-\"is not to be recognized as a defense to an antitrust action.\" As the Seventh Circuit later put it, \"[p]roof of the plaintiff's unrelated unlawful conduct is not a valid in pari delicto defense to an antitrust charge.\" Pinto Trucking Serv., Inc. v. Motor Dispatch, Inc. , 649 F.2d 530, 534 n. 5 (7th Cir. 1981) ; see also Gen. Leaseways, Inc. v. Nat'l Truck Leasing Ass'n , 830 F.2d 716, 720 (7th Cir. 1987) (\"Strictly speaking, the common-law form of the [in pari delicto] defense is not available to defendants in antitrust lawsuits.\"); see also Phillip E. Areeda, Herbert Hovenkamp, ANTITRUST LAW: AN ANALYSIS OF ANTITRUST PRINCIPLES AND THEIR APPLICATION ¶ 361 (3rd and 4th eds. 2010- 2017). Memorex Corp. v. Int'l Bus. Machs. Corp. , 555 F.2d 1379 (9th Cir. 1977), is also illustrative. In that case, the Ninth Circuit held that a plaintiff's alleged theft of a defendant's trade secrets did not prevent that plaintiff from bringing an antitrust suit. The plaintiff, Memorex Corporation, had sued the defendant, IBM, for violating the antitrust laws. Memorex , 555 F.2d at 1380. IBM responded by asserting that the only reason Memorex even existed in the relevant market was because it had stolen IBM's trade secrets. Id. The district court struck that defense, and the Ninth Circuit affirmed. It held: \"A wrongful act committed against one who violates the antitrust laws must not become a shield in the violator's hands against operation of the antitrust laws. This is particularly true when the defendant has other remedies available to him.\" Id. at 1382. Under that law, Authenticom's purported wrongdoing is of no matter at this stage. Defendants may have claims against Authenticom under the CFAA and related state laws- indeed, Authenticom 's docket and defense counsel's representations in court suggest that they may bring such claims-but those claims do not foreclose Authenticom's Sherman Act" } ]

[ { "docid": "16645923", "title": "", "text": "pages of her testimony during the five-day trial. Her proffered inconsistency as to the attitude of a non-defendant police officer, who had investigated the incident a week later, concerned a matter entirely peripheral to the factual matters at issue. Indeed, the offhand negative reply to the question of a grand juror whether the investigating officer had made “any suggestions or anything like that” (see note 6) might not be considered a significant inconsistency from the 17 lines of her testimony (see note 5) describing the interrogation in more detail. We are convinced that the jury evaluation of Mrs. Mathis’ credibility as to the beating and unlawful arrest would not have been affected had the defendants been permitted to develop the discrepancy, such as it was, relating to a peripheral non-merit issue occurring a week subsequent to the incident. In reaching this conclusion, we also take into consideration that Mrs. Mathis’ version of the beating and arrest, accepted by the jury over the denials of the defendants, was corroborated by several other independent witnesses as well as the plaintiff and by other evidence, such as photographs of the victim taken the day after the beating. Fed.R.Civ.P. 61 provides: “No error in either the admission or the exclusion of evidence ... is ground for granting a new trial or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice.” A party asserting error has the burden of proving that “substantial rights” were affected by an erroneous evidentiary ruling. Dietz v. Consolidated Oil & Gas, Inc., 643 F.2d 1088, 1093 (5th Cir. 1981). If in the reviewing court’s conviction the error did not influence the jury or had but very slight effect, the error is harmless. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); 11 Wright & Miller, Federal Practice and Procedure § 2883 (1973). When no substantive prejudice results from an erroneous ruling, the error is harmless. Petrites v. J. C. Bradford & Co., 646 F.2d 1033, 1036 (5th Cir. 1981); Byrd" } ]

[ { "docid": "18938030", "title": "", "text": "contrary, we have “come a long way from the time when all trial error was presumed prejudicial.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984); see also United States v. Hasting, 461 U.S. 499, 508-10, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). The harmless error rules adopted by the Supreme Court, Fed.R.Civ.P. 61, and by Congress, 28 U.S.C. § 2111, “embody the principle that courts should exercise judgment in preference to the automatic reversal for ‘error’ and ignore errors that do not affect the substantial fairness of the trial.” McDonough, 464 U.S. at 553, 104 S.Ct. 845. This means that, “[i]f, when all is said and done, the conviction is such that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand.” Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Particularly apposite here are our cases involving intrusive interrogation and commentary by trial judges that always carry a risk of suggesting that the judge favors one side over the other. In criminal cases, where our willingness to accept the risk of prejudice is presumably less than in civil cases, we have held that “this Court’s role is ‘not to determine whether the trial judge’s conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial.’ ” United States v. Rosa, 11 F.3d 315, 343 (2d Cir.1993) (alteration in original) (quoting United States v. Pisani, 773 F.2d 397, 402 (2d Cir.1985)). Only recently, we suggested that we will upset a judgment in a civil case “on the basis of a judge’s improper remarks if the judge expresses [his] opinion on an ultimate issue of fact in front of the jury or [argues] for one of the parties.” Shah v. Pan Am. World Servs., Inc., 148 F.3d 84, 98 (2d Cir.1998) (quoting Causey v. Zinke (In" }, { "docid": "22894089", "title": "", "text": "The relief for error is tied to a prejudicial effect, so the error must have had a “ ‘substantial and injurious effect or influence in determining the ... verdict.’ ” Dominguez Benitez, 124 S.Ct. at 2335 (citing Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)); Fed.R.Crim.P. 52(b). Further, even if Castro-Trevino establishes clear error, we will not vacate the judgment unless the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Marek, 238 F.3d at 315; see also United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 1778-79, 123 L.Ed.2d 508 (1993). To show prejudice, Castro-Trevino “must show a reasonable probability that, but for the error, he would not have entered the plea.” Dominguez Benitez, 124 S.Ct. at 2336. Because both parties agree that the record lacks a factual basis for Castro-Trevino’s guilty plea, the first two prongs of the plain error review are satisfied. In short, contrary to the charge in the indictment to which Castro-Trevino pleaded guilty, the facts are that he attempted to export a defense article from the United States to Mexico but did not succeed in doing so; there was no evidence he actually exported or aided and abetted anyone who did so. However, the issue remains whether Castro-Trevino’s substantial rights were adversely affected. The government contends that Castro-Trevino’s substantial rights were not affected and he would have entered his plea notwithstanding the Rule 11 error of which he now complains. B. Attempted Exportation While “[t]o attempt a federal offense is not, of itself, a federal crime,” and there is no one general federal statute proscribing all attempts to commit federal offenses, see United States v. York, 578 F.2d 1036, 1038 (5th Cir.1978), it is nevertheless clear that attempted exportation without a license of a defense article on United States Munitions List constitutes a federal crime, namely a violation of 22 U.S.C. § 2778(c). Section 2778(c) provides that “[a]ny person who willfully violates any provision of this section or section 2779 of this title, or any rule or regulation issued under either section ..." }, { "docid": "23620192", "title": "", "text": "the guilty pleas into evidence in the civil trial. By doing so, defendants contend, the district court improperly and prejudicially merged the civil case with the criminal case. Defendants maintain that even if the guilty pleas were relevant to the issue of damages, the prejudice inherent in the pleas far outweighed the necessity of introducing them. Finally, defendants assert that if the guilty pleas were relevant and admissible, the district court should have allowed the defendants to present evidence of the circumstances surrounding the pleas; in particular, the district judge should have allowed defendants to cross-examine Assistant United State Attorney Trúncale about the events which occurred at the time the defendants plead guilty. When an issue is resolved in favor of the United States in a criminal prosecution, that issue may not be contested by the same defendant in a subsequent civil suit brought by the government. Tomlinson v. Lefkowitz, 334 F.2d 262, 264 (5th Cir.1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965). This rule applies in all civil cases brought by the United States where a defendant previously has been found guilty, either by a jury verdict or by a guilty plea. See Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed. 534 (1951); In re Raiford, 695 F.2d 521 (11th Cir.1983). See also Sell v. United States, 336 F.2d 467 (10th Cir.1964) (in False Claims Act case, prior criminal conviction estops defendant contesting same issue in subsequent civil proceeding). In the case at bar, the issues determined by the guilty pleas of the defendants were: (1) that all of the defendants were guilty of criminal conspiracy to violate the Act; (2) that three of the defendants were guilty of substantive violations of the Act; and (3) that the defendants admitted to paying a total of at least $577,400 in kickbacks .generated by their inflated invoices. In this civil case the defendants were sued on the same conspiracy and the same substantive violations of the Act as those to which they plead guilty in the criminal case. Thus," }, { "docid": "23620189", "title": "", "text": "any claim arising out of the conspiracy except civil tax liability. United States v. Kates, 419 F.Supp. 846, 868 (E.D.Pa.1976). The district court in Kates held that in his capacity as Assistant United States Attorney, the criminal prosecutor had no authority to compromise a civil claim of the United States. Id. In the case at bar, even if defendants had presented written evidence of such an agreement, Truncale’s lack of authority would have rendered the agreement non-enforceable. See Dorl v. Comm’r of Internal Revenue, 507 F.2d 406, 407 (2d Cir.1974) (letter from revenue official to taxpayer unenforceable because revenue official lacked authority to execute formal closing of taxpayer’s deficiency). Thus, the government is not estopped from seeking civil damages from these defendants under the Act. B. Evidentiary and Procedural Errors Defendants allege the trial judge committed numerous evidentiary and procedural errors. Defendants contend that their prior guilty pleas should not have been admitted into evidence, at least not without allowing defendants to explain the circumstances surrounding those pleas. Defendants also maintain that the district judge should have recused himself from the case because his conduct throughout the trial indicated his bias and prejudice toward the defendants. Lastly, defendants assert that the district judge committed reversible error by personally marking the jury form before giving it to the jury, and by sending the amended complaint, which was not admitted into evidence, back with the jury to be used in their deliberations. We must determine whether any of these actions by the trial judge constituted error, and if so, whether the error affected a substantial right of the defendants. Only if an error prejudiced a substantial right of a defendant may a court of appeals reverse a lower court decision. See King v. Gulf Oil Co., 581 F.2d 1184 (5th Cir.1978); Int’l Air Industries, Inc. v. American Excelsior Co., 517 F.2d 714 (5th Cir.1975), cert. denied, 424 U.S. 943, 96 S.Ct. 1411, 47 L.Ed.2d 349 (1976) (on appeal, trial errors which do not effect substantial rights of parties are to be disregarded). Whether an error is harmless or prejudicial depends on the" }, { "docid": "8154870", "title": "", "text": "existence of an error, we must then determine whether that error is of such significance as to require a remand of the case for retrial. This court has indicated that “[t]he standard for determining when an error in a jury instruction requires reversal is the general standard for determining harmless error after objection.” United States v. Lemire, 720 F.2d 1327, 1339 n. 16 (D.C.Cir.1983), cert. denied, 467 U.S. 1226, 104 S.Ct. 2678, 81 L.Ed.2d 874 (1984) (citations omitted). Under Fed.R.Civ.P. 61, an error requires reversal only if we conclude that the faulty jury instruction “affect[ed] the substantial rights of the parties. The Supreme Court has stated that “if one cannot say, with fair assurance, ... that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.” Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946). The proper inquiry is “whether the error itself had substantial influence. If so, or if one is left in grave doubt, the [verdict] cannot stand.” Id. This inquiry “involves an assessment of the likelihood that the error affected the outcome of the case.” Jordan v. Medley, 711 F.2d 211, 218 (D.C.Cir.1983) (citations omitted). We are well aware that the circuits are divided on the appropriate standard of review to apply in gauging the effect of an error in a civil case. In the Jordan case we noted that the Supreme Court in Kot-teakos, a criminal case, “acknowledge^] that although the ‘substantial rights’ test applies to both civil and criminal eases, that ‘does not mean that the same criteria shall always be applied’ to those separate categories.” Jordan, 711 F.2d at 219 n. 6 (quoting Kotteakos, 328 U.S. at 762, 66 S.Ct. at 1246-47). In so doing, we noted the language of 28 U.S.C. § 2111 (1976), which requires a court on appeal or on a writ of certiorari to “give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.” The “substantial rights” language is" }, { "docid": "1621695", "title": "", "text": "additional aggravating evidence certified copies of Tennessee convictions based on guilty pleas involving seven burglaries, three aggravated assaults, one shoplifting offense, and one escape attempt. After Moon’s convictions for the armed robbery and murder of Callahan became final, a Tennessee habeas court voided eight of the guilty pleas because the record failed to show that in each case Moon had been advised of his constitutional rights and made a knowing and intelligent waiver of those rights as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and Rounsaville v. Evatt, 733 S.W.2d 506 (Tenn.1987). Therefore, Moon argues, because his death sentence was based on unreliable evidence, it must be invalidated. The State claims — and the district court appears to have held — that Johnson does not apply here because Moon’s vacated guilty pleas were submitted as non-statutory aggravating evidence. In Johnson, on the other hand, the defendant’s prior conviction had established one of three statutory aggravating circumstances, which the jury weighed against the mitigating circumstances. Thus, the State argues, there can be no constitutional violation here because the jury rested its death sentence on two statutory aggravating factors unaffected by the Tennessee habeas court. We need not decide today whether Johnson applies to vacated convictions used as non-statutory aggravating circumstances within the Georgia death penalty scheme because we conclude that Moon’s claim is without merit. In order to succeed on his Johnson claim, Moon must prove that the error was not harmless. See Duest v. Singletary, 997 F.2d 1336, 1338 (11th Cir.1993) (applying the harmless error standard set out in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), to Johnson claim on habeas review). Accordingly, the error is not harmless if it resulted in “actual prejudice,” which occurs when the error “has substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637, 113 S.Ct. at 1722 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). In our opinion, the error here was harmless. Because" }, { "docid": "4194648", "title": "", "text": "the issue of damages is negligible. Given the substantial risk of prejudice, the infinitesimal probative value of the evidence, and the fact that emotional distress was touched on briefly, it was an abuse of discretion to permit the defense to question Barber about his PSMW conviction and resulting incarceration to rebut his narrowly focused claim for emotional-distress damages. The district judge’s view would seemingly permit any civil-rights plaintiffs criminal history to come in on the issue of emotional-distress damages, no matter how tenuous a connection the evidence has to the issue of damages or how central a role emotional distress plays during the plaintiffs case. This, of course, would be contrary to our prior statements instructing courts to proceed carefully when deciding to admit evidence of a § 1983 plaintiffs criminal past. C So the district court abused its discretion in allowing the defense to cross-examine Barber about his 2009 arrest and his PSMV conviction, but Barber is not entitled to a new trial if those errors were harmless, see, e.g., Jordan v. Binns, 712 F.3d at 1137-38. An evidentiary error warrants a new trial “only if the error affects a substantial right of the party,” Fed.R.Evid. 103(a); see also Fed.R.Civ.P. 61, which means that there is a significant chance that the error affected the jury’s verdict, Jordan v. Binns, 712 F.3d at 1137; 3M v. Pribyl, 259 F.3d 587, 599 (7th Cir. 2001). To make this determination, we examine the error in light of the entire record, and a new trial will be granted only if we are unable to say with fair assurance that the error did not substantially sway the jury. See, e.g., Kotteakos v. United States, 328 U.S. 750, 761-65, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). “Where there are several errors, each of which is harmless in its own right, a new trial may still be granted if the cumulative effect of those otherwise harmless errors deprives a litigant of a fair trial.” Jordan v. Binns, 712 F.3d at 1137 (citing Christmas v. City of Chicago, 682 F.3d 632, 643 (7th Cir. 2012)). After examining" }, { "docid": "22439783", "title": "", "text": "than not harmless.” 720 F.2d at 1458 n. 7 (citing ROoger Traynor, The Riddle of Harmless Error (1972)); see also Neder v. United States, 527 U.S. 1, 7, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (noting that in criminal cases constitutional errors affecting substantial rights require automatic reversal, and all other constitutional errors are disregarded only if harmless beyond a reasonable doubt); United States v. Valle-Valdez, 554 F.2d 911, 915-16 (9th Cir.1977) (recognizing the same three possible standards and applying the more-probable-than-not standard to nonconstitutional errors in criminal cases). Each of these “possible” formulations implies a presumption of prejudice; none presumes harmlessness. Third, presuming prejudice, rather than harmlessness, is required by Supreme Court precedent. In O’Neal, the Court rejected both the premise and conclusion of the argument that a presumption of harmlessness applies in civil cases and that therefore such a presumption should apply in habeas cases. The Court held: [Pjrecedent suggests that civil and criminal harmless-error standards do not differ in their treatment of grave doubts as to the harmlessness of errors affecting substantial rights.... [Ejven if, fftr argument’s sake, we were to assume that the civil standard for judging harmlessness applies to habeas proceedings (despite the fact that they review errors in state criminal trials), it would make no difference with respect to the matter before us. For relevant authority rather clearly indicates that, either way, the courts should treat similarly the matter of “grave doubt” regarding the harmlessness of errors affecting substantial rights, and as Kotteakos provides. O’Neal, 513 U.S. at 441-42, 115 S.Ct. 992 (referring to Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). Kotteakos provides that “[if] the error itself had substantial influence ... or if one is left in grave doubt [i.e., equipoise], the conviction cannot stand.” 328 U.S. at 764-65, 66 S.Ct. 1239. Thus, the harmless error standard we apply in civil cases must be consistent with the standard we apply to nonconstitutional errors in criminal cases: “we must reverse ... unless it is more probable than not that the error did not materially affect the verdict.”" }, { "docid": "8015787", "title": "", "text": "77 L.Ed.2d 1090 (1983). Thus, before granting the writ of habeas corpus to a petitioner whose state custody resulted from a criminal conviction, we must determine whether the petitioner’s trial violated his federal rights and whether that violation was the cause of his detention, i.e., whether the error was harmful. Our inquiry into the harmlessness of the alleged constitutional error in this case is whether, in light of the record as a whole, Cooper’s third confession had a “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)); see also Tuggle v. Netherland, 79 F.3d 1386, 1388 (4th Cir.1996) (applying Brecht harmless-error standard to improper admission of testimony). In order for an error to have a “substantial and injurious effect or influence,” it must have “affected the verdict.” O’Neal v. McAninch, 513 U.S. 432,-, 115 S.Ct. 992, 994, 130 L.Ed.2d 947 (1995). Because juries have a limited number of responses to give in a criminal trial — guilty, innocent, or cannot decide — an error is harmless when the error did not substantially sway or substantially influence the response. See Brecht, 507 U.S. at 637, 113 S.Ct. at 1721-22 (actual prejudice must be shown); Kotteakos, 328 U.S. at 765, 66 S.Ct. at 1248 (jury’s judgment must not have been “substantially swayed by the error”); cf. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993) (in context of Fed.R.Crim.P. 52(b), “prejudicial error” means that it must “have affected the outcome”). Thus, \"if the evidence is not merely sufficient, but so powerful, overwhelming, or cumulative that the error simply could not reasonably be said to have substantially swayed the jury’s judgment, then the error is not harmful. See Sherman, 89 F.3d at 1142 (holding that error was harmless “because it was cumulative of the abundant evidence admitted at trial”); Correll v. Thompson, 63 F.3d 1279, 1291 (4th Cir.1995) (holding that" }, { "docid": "13765392", "title": "", "text": "indeterminate,” so reversal is “automatic.” United States v. Gonzalez-Lopez, 548 U.S. 140, 150, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). Ruelas’s case, however, neither “defies” harmless error standards nor is the harm “unquantifiable and indeterminate.” His argument otherwise relies on a faulty premise: that the remedy for all involuntary guilty pleas is the right to go back, plead innocent, and have a trial. That is sometimes the remedy, but not always, and not here. Habeas courts have “broad discretion” in crafting remedies for constitutional errors. See Pickens, 549 F.3d at 382. And, because guilty pleas are in the nature of contracts, Puckett, 129 S.Ct. at 1430, the remedy for Ruelas is specific performance of what he bargained for: a degree hearing where first-degree murder, second-degree murder, and manslaughter could all be considered. E.g., Pickens, 549 F.3d at 382 (“[W]e hold that it is unnecessary to permit a person to withdraw an illegal plea or require the state to retry a case when the defendant’s sentence has been modified to make the sentence legal and to give the defendant every benefit of his bargain.”). Here, the “benefit of the bargain” is the opportunity to be considered for manslaughter, and that is the sort of analysis judges can perform during a harmless-error inquiry. So in this case, where Ruelas pleaded to “open murder” under Michigan law, we can apply harmless error standards to determine whether the Michigan courts properly concluded that he was guilty of second-degree murder. The assumed error was not “structural.” B. Determining whether an error is harmless on habeas review requires us to ask whether the error “had [a] substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). In this Circuit, Brecht is the standard for reviewing all (non-structural) errors on collateral review; it applies “whether or not the state appellate courts recognized the error.” Vasquez v. Jones, 496 F.3d 564, 575 (6th Cir.2007) (citing Fry v." }, { "docid": "3483567", "title": "", "text": "the potential preclu-sive effect of the section 75 hearing were materially prejudicial to the defendants. C. Harmless Error Under Federal Rule of Civil Procedure 61, courts are instructed to “disregard all errors and defects that do not affect any party’s substantial rights.” Fed.R.Civ.P. 61. But “[e]rror cannot be regarded as harmless merely because the trial judge or the appellate court thinks that the result that has been reached is correct.” Federal PRACTICE & ProceduRE § 2883. Instead, the “probable effect of the error” must be “determined in light of all evidence.” Id. The “substantial rights” language of the Federal Rules has therefore been interpreted to require an examination into the likely outcome of the proceedings. An error is not harmless if “one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); see also United States v. David, 131 F.3d 55, 61 (2d Cir.1997) (describing Kotteakos as “construing the ‘substantial rights’ language of 28 U.S.C. § 391 (from which Rule 61 is derived), as requiring an assessment of ‘whether the error itself had substantial influence’ on the outcome of the case.”). The court here erred by not instructing the jury on the preclusive effect of the section 75 hearing officer’s factual findings. The court may also have erred by not instructing the jury on the persuasive weight of the report and recommendation and by excluding that report from evidence. These errors allowed Matusick to attempt to persuade the jury that he was falsely accused of misconduct in support of his argument that the ECWA’s proffered legitimate reason for firing him was false. We conclude, however, that the error did not have the probable effect of having “substantial influence,” David, 131 F.3d at 61, on the outcome of the trial. We think it highly unlikely that the jury would have found the defendants’ evidence regarding Matusick’s alleged misconduct unconvincing. Matusick did testify about the incidents that served as" }, { "docid": "22894088", "title": "", "text": "1030, 1031 (5th Cir.1984). Historically, any failure in Rule 11 procedures surrounding a guilty plea was considered to be irreparable error warranting automatic reversal. In 1983, however, Rule 11(h) was promulgated, and the Supreme Court has since shown reluctance to overturn pleas unless prejudice can be shown on the record as a whole. See United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 1054-55, 152 L.Ed.2d 90 (2002); United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2339, 159 L.Ed.2d 157 (2004). Cf. United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 2087-88, 60 L.Ed.2d 634 (1979) (challenge under 28 U.S.C. § 2255). Because Castro-Trevino objects to the Rule 11 error for the first time on appeal, this court must review for plain error only. Vonn, 122 S.Ct at 1046; Ma-rek, 238 F.3d at 315. Under plain error review, Castro-Trevino bears the burden to show that (1) there is an error; (2) the error is clear and obvious; and (3) the error affects his substantial rights. Ma-rek, 238 F.3d at 315. The relief for error is tied to a prejudicial effect, so the error must have had a “ ‘substantial and injurious effect or influence in determining the ... verdict.’ ” Dominguez Benitez, 124 S.Ct. at 2335 (citing Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)); Fed.R.Crim.P. 52(b). Further, even if Castro-Trevino establishes clear error, we will not vacate the judgment unless the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Marek, 238 F.3d at 315; see also United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 1778-79, 123 L.Ed.2d 508 (1993). To show prejudice, Castro-Trevino “must show a reasonable probability that, but for the error, he would not have entered the plea.” Dominguez Benitez, 124 S.Ct. at 2336. Because both parties agree that the record lacks a factual basis for Castro-Trevino’s guilty plea, the first two prongs of the plain error review are satisfied. In short, contrary to the charge in the indictment to which Castro-Trevino pleaded guilty, the facts are that he" }, { "docid": "8013894", "title": "", "text": "rights requires proof that- “a do-over would more likely than not produce a different result”). To the extent the Rodriguez panel adopted this reading of Dominguez Benitez, we think it is incorrect. The defendant, Carlos Dominguez Benitez (Dominguez), pleaded guilty to a drug trafficking offense. See Dominguez Benitez, 124 S.Ct. at 2336-37. During the plea colloquy, the district court failed to inform Dominguez, as required by Rule. 11 of the Federal Rules of Criminal Procedure, that he could not withdraw his guilty plea if the court did not accept the Government’s sentencing recommendation. See id. at 2337. After the district court imposed a sentence longer than that recommended by the Government, Dominguez appealed. See id. at 2337-38. The Ninth Circuit reversed on plain error review, concluding in part that Dominguez’s substantial rights were affected because “the court’s error was not minor or technical and ... [Dominguez] did not understand the rights at issue when he entered his guilty plea.” United States v. Dominguez Benitez, 310 F.3d 1221, 1225 (9th Cir.2002). The Supreme Court granted certiorari to consider a question not addressed in United States v. Vonn, 535 U.S. 55, 63, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002), in which the Court had held that the plain error standard of Rule 52(b) applied to forfeited Rule 11 challenges: Whether demonstration of an effect on substantial rights requires a defendant to establish that he would not have pleaded guilty in the absence of the error. See Dominguez Benitez, 124 S.Ct. at 2338. The Court answered this question in the affirmative. See id. at 2339-40. Relying on Kotteakos, the Court observed that “the standard phrased as ‘error that affects substantial rights,’ used in Rule 52, has previously been taken to mean error with a prejudicial effect on the outcome of a judicial proceeding” or a “ ‘substantial and injurious effect or influence in determining the ... verdict.’ ” Id. at 2339 (alteration in original) (quoting Kotteakos, 328 U.S. at 776, 66 S.Ct. 1239). The Court also noted that “[i]n cases where the burden of demonstrating prejudice (or materiality) is on the defendant ..." }, { "docid": "23620191", "title": "", "text": "facts of each case. See Kotteakos v. United States, 328 U.S. 750, 761-63, 66 S.Ct. 1239, 1246-47, 90 L.Ed. 1557 (1946). The specific action constituting error cannot be viewed in a vacuum; the entire record must be examined to determine whether the error influenced the jury. See Dunn v. Jefferson Standard Life Ins. Co., 123 F.2d 815 (5th Cir.1941). An error is presumed harmless unless it affected the substantial rights of a party. Fed.R.Civ.P. 61; 28 U.S.C.A. Sec. 2111. The party asserting error has the burden of proving that the error prejudiced a substantial right of that party. Howard v. Gonzales, 658 F.2d 352, 357 (5th Cir. Unit A 1981); Coughlin v. Capitol Cement Co., 571 F.2d 290 (5th Cir.1978). 1. Guilty Pleas During the civil trial the government introduced the defendants’ guilty pleas from the prior criminal investigation of the kickback scheme. Defendants objected to the admission of their pleas on several grounds. Defendants argue that since the district judge granted summary judgment on the issue of liability, there was no reason to allow the guilty pleas into evidence in the civil trial. By doing so, defendants contend, the district court improperly and prejudicially merged the civil case with the criminal case. Defendants maintain that even if the guilty pleas were relevant to the issue of damages, the prejudice inherent in the pleas far outweighed the necessity of introducing them. Finally, defendants assert that if the guilty pleas were relevant and admissible, the district court should have allowed the defendants to present evidence of the circumstances surrounding the pleas; in particular, the district judge should have allowed defendants to cross-examine Assistant United State Attorney Trúncale about the events which occurred at the time the defendants plead guilty. When an issue is resolved in favor of the United States in a criminal prosecution, that issue may not be contested by the same defendant in a subsequent civil suit brought by the government. Tomlinson v. Lefkowitz, 334 F.2d 262, 264 (5th Cir.1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965). This rule applies in all civil cases" }, { "docid": "6808977", "title": "", "text": "Mr. Magleby harbored similar prejudicial attitudes toward African-Americans. This does not provide a sufficient foundation for Dr. Gerlach’s testimony. Second, even if the government’s testimony did establish an adequate foundation for Dr. Gerlach’s testimony, the admission of his testimony, like the testimony in J .H.H., “comes dangerously close” to inviting the jury to find Mr. Magleby guilty by association. Id. Notwithstanding its concerns regarding the expert testimony, the Eighth Circuit held that any error in its admission was harmless due to the ample evidence of the defendants’ guilt. Id. at 829-30. In J.H.H., however, the Eighth Circuit reviewed the admission of evidence in a bench trial. Id. at 829. Consequently, the court reasoned that the prejudicial impact of inflammatory evidence was lessened. Id. In contrast, Mr. Magleby’s trial was before a jury, and the prejudicial impact of inflammatory evidence may therefore be heightened. See 1 McCormick on Evidence § 60, at 262-63 (John W. Strong ed., 5th ed.1999). Nevertheless, we need not decide whether the admission of Dr. Gerlach’s testimony was either an “error” or “plain” under our plain error analysis because we too find that any error was harmless. “A non-constitutional error, such as a decision whether to admit or exclude evidence, is considered harmless ‘unless a substantial right of [a] party is affected.’ ” United States v. Charley, 189 F.3d 1251, 1270 (10th Cir.1999) (quoting Fed.R.Evid. 103(a)). We have held that an error affects a substantial right when it has a “ ‘substantial influence’ on the outcome or leaves one in ‘grave doubt’ as to whether it had such effect.” United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990) (en banc) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). We review “the record as a whole de novo to evaluate whether the error is harmless, examining the context, timing and use of the erroneously admitted evidence at trial and how it compares to properly admitted evidence.” United States v. Hanzlicek, 187 F.3d 1228, 1237 (10th Cir.1999). The burden of persuasion is on the defendant to show that the error" }, { "docid": "23620190", "title": "", "text": "should have recused himself from the case because his conduct throughout the trial indicated his bias and prejudice toward the defendants. Lastly, defendants assert that the district judge committed reversible error by personally marking the jury form before giving it to the jury, and by sending the amended complaint, which was not admitted into evidence, back with the jury to be used in their deliberations. We must determine whether any of these actions by the trial judge constituted error, and if so, whether the error affected a substantial right of the defendants. Only if an error prejudiced a substantial right of a defendant may a court of appeals reverse a lower court decision. See King v. Gulf Oil Co., 581 F.2d 1184 (5th Cir.1978); Int’l Air Industries, Inc. v. American Excelsior Co., 517 F.2d 714 (5th Cir.1975), cert. denied, 424 U.S. 943, 96 S.Ct. 1411, 47 L.Ed.2d 349 (1976) (on appeal, trial errors which do not effect substantial rights of parties are to be disregarded). Whether an error is harmless or prejudicial depends on the facts of each case. See Kotteakos v. United States, 328 U.S. 750, 761-63, 66 S.Ct. 1239, 1246-47, 90 L.Ed. 1557 (1946). The specific action constituting error cannot be viewed in a vacuum; the entire record must be examined to determine whether the error influenced the jury. See Dunn v. Jefferson Standard Life Ins. Co., 123 F.2d 815 (5th Cir.1941). An error is presumed harmless unless it affected the substantial rights of a party. Fed.R.Civ.P. 61; 28 U.S.C.A. Sec. 2111. The party asserting error has the burden of proving that the error prejudiced a substantial right of that party. Howard v. Gonzales, 658 F.2d 352, 357 (5th Cir. Unit A 1981); Coughlin v. Capitol Cement Co., 571 F.2d 290 (5th Cir.1978). 1. Guilty Pleas During the civil trial the government introduced the defendants’ guilty pleas from the prior criminal investigation of the kickback scheme. Defendants objected to the admission of their pleas on several grounds. Defendants argue that since the district judge granted summary judgment on the issue of liability, there was no reason to allow" }, { "docid": "23498460", "title": "", "text": "omitted; alteration in original). Because we find that the admission of these hearsay statements fails to satisfy the more exacting test applicable to “non-structural” errors, we need not — and do not — decide whether the District Court’s error in admitting these statements was a structural error that would not require a finding of prejudicial effect. “The erroneous admission of evidence is not harmless unless [we] can conclude with fair assurance that [this] evidence did not substantially influence the jury.” United States v. Jean-Baptiste, 166 F.3d 102, 108 (2d Cir.1999); see Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). “An error in the admission of evidence may be deemed harmless only if it is highly probable that the error did not contribute to the verdict.” Jean-Baptiste, 166 F.3d at 108 (internal quotation marks omitted). “In making this determination, we consider principally whether the [G]ov-ernment’s case against the defendants] was strong; whether the evidence in question bears on an issue that is plainly critical to the jury’s decision ...; whether the evidence was emphasized in the [Gjovernment’s presentation of its case and in its arguments to the jury; and whether the case was close.” Id. at 108-09 (internal quotation marks and citations omitted). We cannot conclude with fair assurance that the admission of Imbrieco’s plea allocution and Michael’s grand jury testimony did not substantially influence the jury’s guilty verdict. Cf. United States v. McClain, 377 F.3d 219, 2004 WL 1682768, at *3 (2d Cir. July 28, 2004) (finding that the erroneous admission of the co-eonspir-ators’ testimonial plea allocutions was harmless error “beyond a reasonable doubt”). Indeed, Michael’s grand jury testimony was the only evidence offered to support the charge that Fortunato had corruptly endeavored to influence Michael’s grand jury testimony, and, thus, this testimony formed the entire basis for the obstruction-of-justice violation alleged in Count VIII and for Racketeering Act Four in Count II. Plainly, then, the admission of this testimony contributed to the jury’s conclusion that Fortunato committed these offenses. In any event, even were we to deem Michael’s grand jury testimony admissible," }, { "docid": "22474945", "title": "", "text": "Norfolk & Western Ry. Co., 920 F.2d 1185, 1187 (4th Cir.1990). Here, we need not decide whether the district court abused its dis cretion in excluding the evidence identified by Johnson, because assuming arguendo it did, the abuse constitutes harmless error. Title 28, United States Code § 2111 provides: “On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.’.’ Id. The Supreme Court has characterized this statute as the harmless error statute, “which applies directly to appellate courts and which incorporates the same principle as that found in [Federal] Rule [of Civil Procedure] 61.” McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984). In order to conclude the district court’s assumed evidentiary errors did not affect Johnson’s substantial rights, and therefore were harmless, “we need only be able to say ‘with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error[s].’” United States v. Heater, 63 F.3d 311, 325 (4th Cir.1995) (quoting United States v. Nyman, 649 F.2d 208, 211-12 (4th Cir.1980), which in turn was quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). This test appropriately focuses upon “whether the error itself had substantial influence.” Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239. We note that we have never before expressly used this particular test for determining whether an error or assumed error for the sake of argument affected an appellant’s substantial rights in a civil case. Justice Rutledge first expressed this test in Kotteakos, a criminal case, and since then, the majority of our sister circuits have applied it in the civil context. See Williams v. United States Elevator Corp., 920 F.2d 1019, 1022-23 (D.C.Cir.1990); Schrand v. Federal Pac. Elec. Co., 851 F.2d 152, 157 (6th Cir.1988); Aetna Casualty & Sur. Co. v. Gosdin, 803 F.2d 1153," }, { "docid": "8053679", "title": "", "text": "U.S. 279, 307-08, 111 S.Ct. 1246, 1264, 113 L.Ed.2d 302 (1991)). Deprivation of the right to counsel or a biased judge are “structural defects” because they infect the entire trial process. Fulminante, 499 U.S. at 306-10, 111 S.Ct. at 1262-65. “[M]ost constitutional errors can be harmless.” Id. at 306, 111 S.Ct. at 1263. The Supreme Court classifies admission of an involuntary confession as “trial error.” Id. at 306-11, 111 S.Ct. at 1262-66. In practical terms, admission of evidence of a withdrawn plea resembles admission of an involuntary confession, not a biased judge or total deprivation of the right to counsel. The purported error in the case at bar is in the exercise of discretion by a trial judge about how to cure prejudice to the defendant from information defense counsel elicited from a potential alternate juror. If the trial judge adequately cured the defect so that no actual prejudice resulted, the error is harmless and the defendant is not entitled to the writ. The test for prejudice has recently been clarified by the Supreme Court. The standard for determining whether to grant the writ in collateral review of a state court conviction is not whether the error was harmless beyond a reasonable doubt, as in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 706 (1967), but rather, whether the constitutional error “ ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht, 507 U.S. at 623, 113 S.Ct. at 1713, quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946); Jeffries v. Blodgett, 5 F.3d 1180, 1190 (9th Cir.1993). Burden of proof was clarified last term. The Court has “deliberately phrase[d] the issue ... in terms of a judge’s grave doubt, instead of in terms of ‘burden of proof.’” O’Neal v. McAninch, — U.S. -, -, 115 S.Ct. 992, 994-95, 130 L.Ed.2d 947 (1995). The reviewing judge should “ask directly, ‘Do I, the judge, think that the error substantially influenced the jury’s decision?’ ” Id. at -, 115 S.Ct. at 995. Only if the" }, { "docid": "4459260", "title": "", "text": "error was harmless. B. Harmless Error. Federal Rule of Civil Procedure 61 provides: No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. An erroneous evidentiary ruling that does not affect a party’s “substantial right” is thus harmless. See also McLaughlin, supra, § 103.40; Fed.R.Evid. 103(a) (“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.”). Whether an evidentiary error implicates a substantial right depends on “the likelihood that the error affected the outcome of the case.” Malek v. Fed. Ins. Co., 994 F.2d 49, 55 (2d Cir.1993). In Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), the Supreme Court stated that “if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.” Id. at 765, 66 S.Ct. 1239. Although Kotteakos was a criminal case, we have cited and applied this standard to error in civil cases. See, e.g., Rotolo v. Digital Equip. Corp., 150 F.3d 223, 225 (2d Cir.1998); Hynes v. Coughlin, 79 F.3d 285, 291 (2d Cir.1996); Phoenix Assocs. III v. Stone, 60 F.3d 95, 105 (2d Cir.1995); Malek, 994 F.2d at 55; Amatucci v. Del. & Hudson Ry. Co., 745 F.2d 180, 184 (2d Cir.1984). We have altered the standard for civil cases, however, by requiring the appellant to show that the error was not harmless, rather than" } ]

[ { "docid": "22457730", "title": "", "text": "Mr. Chief Justice TANEY delivered the opinion of the court. This case is brought .here by writ of error upon a judgment rendered in the Supreme Court of the State of Louisiana, and a motion has been made to dismiss the writ. It appears by the record that the judgment was rendered on the 25th of October, 1843. The writ of error by which the case is brought here was allowed by the chief justice of the State court, upon the petition of the appellant, on the 19th of October, 1848, and the bond also bears date on that day. But the writ of error was not issued until the 4th of November fol-.. lowing. It was issued by the clerk of the court in which the judgment was rendered, and on .the same day, as appears by indorsement upon it, filed in that office by the counsel for the plaintiff in error. More than five years from the day of the judgment had therefore elapsed when this writ of error was filed. The act of 1789, chap. 20, § 22, provides that writs of error shall not be brought’but within five years after rendering or passing the judgment or decree complainéd of. The writ of error is not brought, in the legal meaning of the term, until it is filed in the court which rendered the judgment. It is the filing of the writ that removes the record from the inferior to the appellate court, and the period of limitation prescribed by the act of Congress must be calculated accordingly. The day on which the writ may have been issued by the clerk; or the day' on which it is tested, are not material in deciding the question. In this case, therefore, five years had elapsed before the writ o.f error was brought, and the limitation of time in the act of Congress was a bar to the writ. According to the English practice, the defendant in error must avail himself of this defence by plea. He cannot take advantage of it by motion: nor can the court judicially" } ]

[ { "docid": "12178949", "title": "", "text": "22d of January, 1885, a petition for an appeal was presented to Mr. Justice Miller in Washington and allowed, citation signed, and bond approved. These papers were filed with the clerk of the circuit court, January 27, 1885, being five days after the expiration of two years from the date of the final decree. It was ruled that an appeal could not be said to be “taken” until it was in some way presented to the court which made the decree appealed from, thereby putting an end to its: jurisdiction over the cause and making it its duty to send it to the appellate .court. In Brandies v. Cochrane, 105 U.S. 262, 26 L.Ed. 989, it was decided that in the absence of a petition and allowance, the filing of the appeal bond, duly approved by a justice of this court, was sufficient evidence of the allowance of an appeal, and was a compliance with the law requiring the appeal to be filed in the clerk’s office. In Brown v. McConnell, 124 U.S. 489, 8 S.Ct. 559, 31 L.Ed. 495, it was held that the signing of a citation returnable to the proper term of this court, though without the acceptance of security, nevertheless constituted an allowance of appeal which would enable this court to take jurisdiction and to afford the appellants an opportunity to furnish the requisite security here. In these cases the original citation and the original writ of supersedeas together with certified copies of the assignment of errors and of the supersedeas bond and of the orders allowing the appeals, were filed in the district court, September 14, 1900. This was held by the circuit court of appeals sufficient to give effect to the appeals, and we concur in that conclusion if treated as open to re-examination here. It is also contended that an appeal did not lie from the orders of July 23 and August 10, inasmuch as they were interlocutory orders in respect of the appointment of a receiver. June 6, 1900, an act was passed “making further provision for the civil government in Alaska" }, { "docid": "22130452", "title": "", "text": "How. 203, 207; Steamer Virginia, 19 How. 182; Castro v. United States, 3 Wall. 46; Mussina v. Cavazos, 6 Wall. 355; Grigsby v. Purcell, 99 U. S. 505; The Tornado, 109 U. S. 110; State v. Demarest, 110 U. S. 400 ; Killian v. Clark, 111 U. S. 784. On the 22d day of January, 1885, exactly two years after the entry of the decree, a petition for an appeal was presented by the solicitor of the complainant to Mr. Justice Miller, and allowed by him. At the same time Justice Miller signed a citation to the defendants to appear in the Supreme Court of the United States at the then next term thereof, to answer the appeal. A bond for costs in the sum of $1000 was also at the same time presented to and approved by the same Justice. These papers were not presented' to the Circuit Court, nor filed with the clerk thereof, until the 27th day of January, 1885. On that day the following order was made and entered in the case to wit: “ Comes N. & J. Erb and pray the court to enter an order granting to the plaintiff an appeal in this cause to the Supreme Court of the United States, which motion is denied, such appeal having heretofore been granted. It is ordered by the court that this entry bear date as of January 22, 1885.” And on the same day the following order was entered in this cause: “ Comes N. & J. Erb, attorneys for said plaintiff, and file here in court a prayer for appeal to the Supreme Court of the United States and the allowance of said appeal, by Mr. Justice Miller, on the 22d day of January, 1885; also a citation signed by. Mr. Justice Miller and bond for costs approved by said Justice. Which prayer for appeal to the Supreme Court of the United States, and the allowance of said appeal by said Justice, is as follows: ” [then copying the petition for appeal, the allowance, citation, and bond; which papers were endorsed: “ Filed" }, { "docid": "13840542", "title": "", "text": "the Circuit Court of Appeals dated January 23, 1905, and from the order of'April 25, 1905, denying the motion to recall the mandate, and from the order of May 24, 1905, denying the petition foi rehearing. An appeal was allowed and certificate granted May 27, 1905, under section 25b(2) of the Bankruptcy Act, and it was claimed that under the rule held in Brockett v. Brockett that order of the Court of Appeals did not become final until the petition for rehearing was denied. Mr. Chief Justice Fuller, overruling this contention, said, at page 145 of 203 U. S., at page 52 of 27 Sup. Ct. (51 L. Ed. 128): \"The cases cited for appellant, in which it. was held that an application for a rehearing, made before the time for appeal had expired, suspended the running of the period for taking an appeal, are not applicable when that period had already expired. When the time for taking an appeal has expired, it .cannot be arrested or called back by a simple order of court. If it could he, the law which limits the time within which an appeal can be taken would be a dead letter.” This rule is as clearly applicable to proceedings for a supersedeas as it is to the time within which an appeal or writ of error to review a judgment or decree of the court may be taken. It affirmatively appears that the motion for new trial in the present case was not filed until nearly five months after the rendition of the judgment; and at no time prior to that were any steps taken, either under section 987 or otherwise, to suspend the finality of the judgment of November 1, 1910. The writ of error was not sued out until April 17th or but 13 days before the expiration of 6 months after the entry of the judgment. In my judgment the supersedeas in this case cannot be upheld without disregarding the decisions of the Supreme Court in Kitchen v. Randolph, Cambuston v. United States, and Conboy v. First National Bank. For the" }, { "docid": "22332287", "title": "", "text": "may be prescribed in law in cases of writs of error. Rev. Stat. § 1012. As it is the filing of the writ of error in the court which rendered the judgment that removes the record,'the writ of error is not brought in the. legal meaning of. the term until it is so filed, Brooks v. Norris, 11 How. 204; nor is an appeal “ taken ” until it is in some way presented to the court which made the decree appealed from. Credit Compamy v. Ark. Central Railway Company, 128 U. S. 258. Cross-appeals must be prosecuted like other appeals, and therefore the cross-appeal is not taken until brought to the attention, of the court whose decree it questions. Although-' the record may have been removed to this court upon appeal, yet the court below may állow a cross-appeal, sign a. citation, and approve a bond, within the two years prescribed. And so, when a cross-appeal is allowed by a justice of this court, the petition 'and order of allowance must be filed in the court below, in order to .the .due taking of the cross-appeal under the statute. As in this case, the petition, order and bond were not filed in the Circuit Court until'after two years' had elapsed from the date of the entry of the decree, the cross-appeal must be dismissed. The amount due to Churchill, trustee, upon the notes and acceptances, does not appear to have been questioned, and with, interest from January 9, 1882, to the 2d day of September, 1885, reached the sum of $28,511.70; The court passed upon exceptions embracing the items of damages claimed by way of recoupment set forth, in the commissioner’s report, and allowed the sum of 17151, w-hich, with interest to September 2, 1885, made an aggregate of $9112.20, and that amount being deducted from the $28,511.70, left a balance of $19,1-29.50 in favor of the defendant Churchill, trustee, for which the decree was .rendered. The dismissal of the cross-appeal dispenses' with any inquiry into these allowances so far as the cross-, complainants are concerned. By section 997" }, { "docid": "22130451", "title": "", "text": "Mr. Justice Bradley delivered the opinion of the court. This was a bill filed by the appellants on the 15th day of-April, 1882, to set aside a sale of the Arkansas Central Railroad, made by the master in chancery on July 26th, 1877, under a decree rendered in the District Court of the United States for the Eastern District of Arkansas, at Helena, on the 17th day of March, 1877, at the suit of the Union Trust Company of New York against the railroad company, foreclosing a' mortgage executed to secure certain bonded indebtedness. On January 22d, 1888, a final decree was entered dismissing the bill for want of equity. On the same day, to wit, January 22, 1883, an appeal to this court was prayed for and allowed; but it was never prosecuted, no bond being given, no citation issued, and no return of the record being made to this court at the ensuing term. That appeal, therefore, ceased to have any operation or effect, and cannofr avail the appellants. Brooks v. Norris, 11 How. 203, 207; Steamer Virginia, 19 How. 182; Castro v. United States, 3 Wall. 46; Mussina v. Cavazos, 6 Wall. 355; Grigsby v. Purcell, 99 U. S. 505; The Tornado, 109 U. S. 110; State v. Demarest, 110 U. S. 400 ; Killian v. Clark, 111 U. S. 784. On the 22d day of January, 1885, exactly two years after the entry of the decree, a petition for an appeal was presented by the solicitor of the complainant to Mr. Justice Miller, and allowed by him. At the same time Justice Miller signed a citation to the defendants to appear in the Supreme Court of the United States at the then next term thereof, to answer the appeal. A bond for costs in the sum of $1000 was also at the same time presented to and approved by the same Justice. These papers were not presented' to the Circuit Court, nor filed with the clerk thereof, until the 27th day of January, 1885. On that day the following order was made and entered in the" }, { "docid": "23600852", "title": "", "text": "was entered on January -22, 1883. The law allowed two years from final entry of the decree in which to appeal. On January 22, 1885, exactly two years after such entry, a petition for an appeal was presented by counsel for complainant to Mr. Justice Miller, and allowed. At the same time, Mr. Justice Miller signed a citation to the defendants to appear in the supreme court of the United States, at the next term, to answer the appeal. A bond for costs was also, at the same time, presented and approved by the same justice. These papers, if they had been filed in the court where the decree was entered on that day, would have perfected the appeal within the two years, and given the supreme court jurisdiction; but they were not presented to the circuit court, nor filed with the clerk thereof, until five days later, on January 27, 1885. The cause was argued at length in the supreme court when it was reached upon the docket, and submitted on the merits. The supreme court, nevertheless, dismissed the appeal for the want of jurisdiction, because not taken in time; that is to say, within the two, years allowed by law. The doctrine declared in Brooks v. Norris, 11 How. 204, that the writ of error is not “brought,” in the legal meaning of the term, until it is filed in the court which rendered the judgment, is reaffirmed, and the same doctrine applied to appeals. There an appeal had been prayed for and allowed within the time, and all the papers necessary to perfect it filed in the proper court, five days thereafter. The cause, when reached, was argued and submitted on the merits. So far as the little matter of the delay of five days in filing the appeal papers could be waived by the parties, it was waived; but the court refused to take jurisdiction, notwithstanding the waiver. The same doctrine is affirmed in subsequent cases. See Small v. Railroad Co., 134 U. S. 515, 10 Sup. Ct. 614; Farrar v. Churchill, 135 U. S. 609," }, { "docid": "22332285", "title": "", "text": "accordingly taken and a report made by the special commissioner, and a final decree rendered, November 5,. 1885, in favor of Churchill, trustee, for the ’ recovery from the complainant of the sum of $19,129.50, to bear interest at the rate of .eight per cent per annum from the sécbnd day of September, 1885, until paid; and that said sum of money with interest and costs should be a first and prior lien on the lands in question, which should be sold, in satisfaction, in default of payment, as provided. From this decree an appeal was prayed by the complainant, an appeal bond duly given and approved December 1, 1885, with Thomas Rigby as surety, and the record was filed in this court November 13, 1886. The opinion of the District Judge holding the Circuit Court was filed September 2, 1885, and appears in the record. On October 31, 1887, the defendants Churchill and Clark presentéd a petition for a cross-appeal to a Justice of this court, and obtained an allowance thereof, an appeal bond being approved, and a citation issued on that day. This petition was filed in the Circuit Court on the 7th day of November, 1887. The citation bears this endorsement: “ On this 5th lay of November, in the year of our Lord one thousand eight tundred and eighty-seven, I, as administrator of the estate of Hired B. Pittman, accept service of the within citation, and ereby enter my appearance as such administrator herein, Walton Farrar, Adm’r.” This citation accompanied the tran-. script of the petition, order and bond on cross-appeal filed in this court November 21, 1887.- It appeared from the petition that since the original appeal was taken, Alfred B. Pittman had died, and the cause had been revived in the name of Walton Farrar, as administrator. No decree in any action in equity can be reviewed by this court on appeal, unless the appeal is taken within two years after the entry of such decree. Rev. Stat. § 1008. And appeals áre subject to the same rules, regulations and restrictions as are or" }, { "docid": "23600851", "title": "", "text": "was nothing looking to a waiver until the right to the writ of error had been lost by lapse of time. If consent could give jurisdiction a month after the time for issuing the writ had elapsed, there is no reason why it might not ten years after. But it is quite clear from the authorities cited and others that there can be no waiver of the writ at any time. The issuing of the writ within the prescribed time is a jurisdictional fact, and neither consent nor anything else can take the place of it, at the option of the parties. If there can be no express waiver by. stipulation, there can be no implied waiver. The case of Credit Co. v. Arkansas Cent. Ry. Co., 128 U. S. 258, 9 Sup. Ct. 107, is very instructive, and shows the great strictness with which these questions of the appellate jurisdiction of the United States supreme court have been treated. It was an appeal in a chancery case. The final decree in the circuit court was entered on January -22, 1883. The law allowed two years from final entry of the decree in which to appeal. On January 22, 1885, exactly two years after such entry, a petition for an appeal was presented by counsel for complainant to Mr. Justice Miller, and allowed. At the same time, Mr. Justice Miller signed a citation to the defendants to appear in the supreme court of the United States, at the next term, to answer the appeal. A bond for costs was also, at the same time, presented and approved by the same justice. These papers, if they had been filed in the court where the decree was entered on that day, would have perfected the appeal within the two years, and given the supreme court jurisdiction; but they were not presented to the circuit court, nor filed with the clerk thereof, until five days later, on January 27, 1885. The cause was argued at length in the supreme court when it was reached upon the docket, and submitted on the merits. The" }, { "docid": "13587749", "title": "", "text": "never, so far as he could remember, accompanied the. delivery of the notes with a declaration that they were intended to bind her real estate. Such testimony is wholly insufficient to warrant a court of equity in decreeing that debts, which araprima fade the debts of the husband, should be considered as debts of the wife, and made a lien upon her separate estate. Decree reversed, a/nd case remanded with directions to dismiss the lili. A-fter entry of judgment, Mr. Charles M. Matthews for appellee, appeared only for the- purpose of the motion, and on the 24th of April, 1885, moved to set aside the judgment and decree and to dismiss the appeal for the following reasons : “1st. Because no citation hath been issued or served, the security -herein having been taken and accepted at a term of the said Supreme Court of the District of Columbia subsequent to that during which said appeal was prayed, said Thomas Knowles not having entered a general appearance herein. “ 2d. Because the matter in dispute did ■ not exceed the sum of twenty-five hundred ($2,500) dollars.” Me. Chief Justice \"Waite delivered the opinion.of the court on this motion, May 4, 1885. The facts on which this motion rests are these: The final decree in the cause was rendered February 23, 1881. At the foot of the decree, and as part of’ the original entry, is the following: “From this decree the defendants pray an appeal to the Supreme Court of the United States, which appeal is hereby allowed. “By order of the court: D, K. Caettee, “ chf. just:’ Security upon the appeal was- not taken until November 5, 1881, which was after the term when the decree was rendered. No citation was served on the appellee, but the appeal was duly docketed in this court November 11, 1881. The cause was called in- its.regular order for the first time January 9, 1885, and on that day submitted on printed brief by.the counsel for the appellants, no one appearing for the appellee. On the 17th of January, the court, of its." }, { "docid": "7264379", "title": "", "text": "in equity, shall be reviewed in the Supreme Court, on writ of error or appeal, unless the writ of error is brought, or the appeal is taken within two years after the entry of such judgment, decree, or order.” This rule is applicable to writs of error to the State courts in like manner as to Circuit Courts. Scarborough v. Pargoud, 108 U. S. 567. In the case of Brooks v. Norris, 11 How. 204, construing the same language in the judiciary act of 1789, it is said “ that the writ of error is not brought, in the legal meaning of the term, until it is filed in the court which rendered the judgment. It is the filing of the writ that removes the record from the inferior to the appellate court, and the period of limitation prescribed by the act of Congress must be calculated accordingly.” This language is repeated in Mussina v. Cavazos, 6 Wall. 355, and in Scarborough v. Pargoud, supra. Though the writ of error in this case seems to have been issued by the clerk of the Circuit Court of the United States on the 10th day of May, 1884, and is marked by him for some reason as filed on that day, it is marked by the clerk of the court to which it is directed, namely, the Circuit Court of La Crosse County, as filed on the 29th day of that month. It is not disputed that this is the day it was filed in his office. This must be held to be the day on which the writ of error was brought. The judgment which we are asked to review by this writ was entered in the Circuit Court of La Crosse County, May 24, 1882. It is signed by the judge on that day, and is expressly dated as of that day, and it is marked filed on'that day over the signature of the clerk of that court. This is the judgment —the entry of the judgment — and on that day the plaintiff in error had a right to" }, { "docid": "22130453", "title": "", "text": "case to wit: “ Comes N. & J. Erb and pray the court to enter an order granting to the plaintiff an appeal in this cause to the Supreme Court of the United States, which motion is denied, such appeal having heretofore been granted. It is ordered by the court that this entry bear date as of January 22, 1885.” And on the same day the following order was entered in this cause: “ Comes N. & J. Erb, attorneys for said plaintiff, and file here in court a prayer for appeal to the Supreme Court of the United States and the allowance of said appeal, by Mr. Justice Miller, on the 22d day of January, 1885; also a citation signed by. Mr. Justice Miller and bond for costs approved by said Justice. Which prayer for appeal to the Supreme Court of the United States, and the allowance of said appeal by said Justice, is as follows: ” [then copying the petition for appeal, the allowance, citation, and bond; which papers were endorsed: “ Filed Jam,. 27, 1885. Ralph, L. Goodrich, clerks'] This is all that is shown by the record in regard to the taking of the appeal; from which it appears that the appeal was allowed by Justice Miller on the last day on which an appeal could.be taken,\"'but was not presented to the court below, nor filed with the clerk, until five days after said time had expired. The language of the statute is, that “ no judgment, decree' or order of a Circuit or District Court, in any civil action at law or in equity, shall be reviewed in the Supreme Court on writ of error or appeal unless the writ of error is' brought, or the appeal is taken, within two years after the entry of such judgment, decree or order.” Rev. Stat. § 1008. It was decided in Brooks v. Norris, 11 How. 203, that “ the writ of error is not brought, in the legal meaning of the term, until it is filed in the court which rendered the judgment.” And Chief Justice" }, { "docid": "10904720", "title": "", "text": "within ten days after the. entry of the decree or decision ap pealed from.” i It appears that the decree of the District Court was entered June 26, 1879, and that a petition for an appeal was addressed to the judge of the Circuit Court, the jurat to which was dated June 28, and on June 30 a bond for costs on appeal was filed. The appeal, however, to the Circuit Court was not allowed and filed until July 16, twenty days after the decree of the District Court, and it does not appear that any notice was given to the clerk of the District Court, or to the defeated party, as required by section 4981; but it further appears that the petition for appeal, the allowance thereof, a copy of the docket entries and a bond for costs were filed in the Circuit Court, August 30, 1879. Here the' matter rested until December 20, 1895, when Mrs. Bryar, the prevailing party, moved the Circuit Court, not to dismiss the appeal for the reason that it was not taken in time, but, stating that it had been “ duly allowed,” to obtain an order declaring it deserted, for the reason that the appellants had failed to bring up the record from the District Court, pay the entry costs or prosecute their appeal. This was apparently treated as a motion to dismiss, and was denied. • After a lapse of sixteen years it is now too late to ask this court to hold that the appeal should have been dismissed for a reason’which does not seem to have been called to the attention of the Circuit Court, when the original motion was made to declare the appeal deserted. If the plaintiffs in that case had intended to insist upon their rights under the decree, they should either have moved to dismiss the appeal within a reasonable time, or pressed it to a hearing in the Circuit Court, instead of abandoning it and bringing a new suit upon the same cause of action in the state court. The case upon the merits" }, { "docid": "13587750", "title": "", "text": "■ not exceed the sum of twenty-five hundred ($2,500) dollars.” Me. Chief Justice \"Waite delivered the opinion.of the court on this motion, May 4, 1885. The facts on which this motion rests are these: The final decree in the cause was rendered February 23, 1881. At the foot of the decree, and as part of’ the original entry, is the following: “From this decree the defendants pray an appeal to the Supreme Court of the United States, which appeal is hereby allowed. “By order of the court: D, K. Caettee, “ chf. just:’ Security upon the appeal was- not taken until November 5, 1881, which was after the term when the decree was rendered. No citation was served on the appellee, but the appeal was duly docketed in this court November 11, 1881. The cause was called in- its.regular order for the first time January 9, 1885, and on that day submitted on printed brief by.the counsel for the appellants, no one appearing for the appellee. On the 17th of January, the court, of its. own motion, ordered “ that this cause be re-argued, either orally or on printéd briefs, to be filed on or before the first Monday in March next.” The purpose of this order was to allow; the appellee an opportunity to be heard. A copy was served on him personally on or about January 21, and he wrote- the clerk, under date of February 28, as follow^: “ Having been advised by counsel that no appeal has ever been perfected to the Supreme Court of the U. S. in the case of which you write, I would inform you that I respectfully decline to authorize an appearance to be entered in that court for me in that cause for any purpose whatever.” On March 2, the appellants again submitted the cause on a printed brief, no one appearing for the appellee. The case “was taken under advisement and held until April 13, when-the decree of the court below was reversed, and an entry made to that effect. On the 20th of April, the appellee came, and" }, { "docid": "9734095", "title": "", "text": "Mr. Chief Justice Fuller delivered the opinion of the court. Fowler, deceased, claimed as having by assignment become the owner of all the interest of one. McClosky in the subject matter of this suit, and in certain letters patent, in respect to which the bill herein was filed by McClosky against Hamill. A decree dismissing the bill was entered in the Circuit Court on April 21,1883. Judgment for costs was rendered June 16,. 1883. The record does not show the judgment of June 16, but the petition for appeal states that “ on the 21st day of April, 1883, a decree was made in said suit and duly entered, whereby it was ordered, adjudged and decreed that the said bill of complaint be dismissed, and that the said McCloskjr pay to the above-named respondent .the costs of said suit, to be taxed, and thereupon the said costs were taxed; and on the 16th day of June, 1883, the final decree was entered in said cause, including judgment for the amount of said costs as taxed, and execution was duly issued for said costs, etc.” The application for the allowance of an appeal- was dated June 15, and the appeal allowed June 16, 1885. The citation was signed June 16 and the appeal bond executed June 17, 1885. The petition for and allowance of appeal and the citation were filed in the Circuit Court June 19, and the appeal bond June 17, 1885. The final decree was that of April 21, 1883, and the appeal was not taken in time. Rev. Stat. § 1008; Silsby v. Foote, 20 How. 290. And had the judgment for costs of June 16, 1883, been the final decree, still the result must be the same, as the papers on appeal were not filéd in the Circuit Court within two years thereafter. Credit Co. v. Arkansas Cent. Railway Co., 128 U. S. 258. The appeal must therefore be Dismissed„•" }, { "docid": "13859371", "title": "", "text": "Ch. Justice Fuller, after making the above statement, delivered the opinion of the court. The writ of habeas corpus cannot be availed of as a writ of error and unless the writ or orders, for a violation of which .petitioner is being punished, in the case referred to in the petition, were absolutely void, this application must be denied. Accordingly it is contended that there was no legal authority for the issue of the writ of supersedeas, and that the Circuit Court of Appeals had not, at the time the writ was issued, nor at any other time, jurisdiction of the appeal in question. It is said the appeal was not “ taken ” until the allowance thereof was filed in the office of the District Court for the District of Alaska. In Credit Company v. Arkansas Central Railway Company, 128 U. S. 258, a final decree had been entered in the Circuit Court for the Eastern District of Arkansas dismissing a bill for want of equity on the 22d of January, 1883, ánd on the 22d of January, 1885, a petition for an appeal was presented to Mr. Justice Miller in Washington and allowed, citation signed, and bond approved. These papers were filed with the clerk of the Circuit Court, January 27, 1885, being five days after the e. piration of two years from the date of the final decree. It was ruled that an appeal could not be said to be “ taken ” until it was in some way presented to the court which made the decree appealed from, thereby putting an end to its jurisdiction over the cause and making it its duty to send it to the appellate court. In Brandies v. Cochrane, 105 U. S. 262, it was decided that in the absence of a petition and allowance, the filing of the appeal bond, duly approved by a justice of this court, was sufficient evidence of the allowance of an appeal, and was a compliance with the law requiring the appeal to be filed in the clerk’s office. In Brown v. McConnell, 124 U." }, { "docid": "13859372", "title": "", "text": "the 22d of January, 1885, a petition for an appeal was presented to Mr. Justice Miller in Washington and allowed, citation signed, and bond approved. These papers were filed with the clerk of the Circuit Court, January 27, 1885, being five days after the e. piration of two years from the date of the final decree. It was ruled that an appeal could not be said to be “ taken ” until it was in some way presented to the court which made the decree appealed from, thereby putting an end to its jurisdiction over the cause and making it its duty to send it to the appellate court. In Brandies v. Cochrane, 105 U. S. 262, it was decided that in the absence of a petition and allowance, the filing of the appeal bond, duly approved by a justice of this court, was sufficient evidence of the allowance of an appeal, and was a compliance with the law requiring the appeal to be filed in the clerk’s office. In Brown v. McConnell, 124 U. S. 489, it was held that the signing of a citation returnable to the proper term of this court, though without the acceptance of security, nevertheless constituted an ’ allowance of appeal which would enable this court to take jurisdiction and to afford the appellants an opportunity to furnish the requisite security here. In these cases the original citation and the original writ of supersedeas together with certified copies of the assignment of errors and of the supersedeas bond and of the orders allowing the appeals, were filed in the District Court, September 14,1900. This was held by the Circuit Court of Appeals sufficient to give effect to the appeals, and we concur in that conclusion if treated as open to reexamination here. It is also contended that an appeal did not lie from the orders of July 23 and August 10, inasmuch as they were interlocutory orders in respect of the appointment of a receiver. June 6, 1900, an act was passed “ making further provision for the civil government in Alaska and for" }, { "docid": "22946043", "title": "", "text": "‘ brought ’ until it is, in some way, presented to the court which made the decree appealed from, thereby putting an end to its jurisdiction over the cause, and making it its duty to send it to the appellate court.” There the appeal was allowed by Mr. Justice Miller on the last day on which an appeal could be taken (Revised Statutes, § 1008), but was not presented to the court below nor filed with the clerk until five days after the prescribed time had expired. It was held that the appeal must be dismissed, and Mr. Justice Bradley added: “The attempt made, in this case, to anticipate the actual time of presenting and filing the appeal, by entering an order nunc pro tunc, does not help the case. When the time for taking an appeal has expired, it cannot be arrested or called back by a simple order of court. If it could be, the law which limits the time within which an appeal can be taken would be a dead letter.” In Farrar v. Churchill, 135 U. S. 609, it was held that a cross appeal in equity, like other appeals, must be entered within the time limited, calculating from the date of the decree, and because in that case petition, order and bond were not filed in the Circuit Court until after the lapse of two years from the entry of the decree the cross appeal was dismissed. It was ruled also that the failure to file an assignment of errors, although required by the act of .Congress, and the rule of court, was not jurisdictional and could be waived. Revised Statutes, § 997; Rule 11; School District v. Hall, 106 U. S. 428. In Conboy v. Bank, 203 U. S. 141, it was held that the time within which an appeal may be taken under § 25b of the bankruptcy act and general order in bankruptcy XXXVI runs from. the entry of the original judgment or decree, and when it has expired is not revived by a petition for a rehearing, and that where the" }, { "docid": "12178948", "title": "", "text": "Mr. Chief Justice FULLER delivered, the opinion of the court: The writ of habeas corpus cannot be availed of as a writ of error, and unless the writ or orders, for a violation of which petitioner is being punished, in the case referred to in the petition, were absolutely void, this application must be denied. Accordingly it is contended that there was no legal authority for the issue of the writ of supersedeas, and that the circuit court of appeals had not, at the time the writ was isstied, nor at any other time, jurisdiction of the appeal in question. It is said the appeal was not “taken” until the allowance thereof was filed in the office of the district court for the district of Alaska. In Credit Co. v. Arkansas C. R. Co., 128 U.S. 258, 9 S.Ct. 107, 32 L.Ed. 448, a final decree had been entered in the circuit court for the eastern district of Arkansas dismissing a bill for want of equity on the 22d of January, 1883, and on the 22d of January, 1885, a petition for an appeal was presented to Mr. Justice Miller in Washington and allowed, citation signed, and bond approved. These papers were filed with the clerk of the circuit court, January 27, 1885, being five days after the expiration of two years from the date of the final decree. It was ruled that an appeal could not be said to be “taken” until it was in some way presented to the court which made the decree appealed from, thereby putting an end to its: jurisdiction over the cause and making it its duty to send it to the appellate .court. In Brandies v. Cochrane, 105 U.S. 262, 26 L.Ed. 989, it was decided that in the absence of a petition and allowance, the filing of the appeal bond, duly approved by a justice of this court, was sufficient evidence of the allowance of an appeal, and was a compliance with the law requiring the appeal to be filed in the clerk’s office. In Brown v. McConnell, 124 U.S. 489, 8" }, { "docid": "22946042", "title": "", "text": "Mr. Chief Justice Fuller, after making the foregoing statement, delivered the opinion of the court. The rule has long been settled that “a writ of error is not brought, in the legal meaning of the term, until it is filed in the court which rendered the judgment. It is the filing of the writ that removes the recold from the inferior to the appellate court, and the penod of limitation prescribed by the act of Congress must be calculated accordingly.” Taney, C. J., in Brooks v. Norris, 11 How. 204; Polleys v. Black River Company, 113 U. S. 81; Credit Company v. Arkansas Central Railway, 128 U. S. 258; Farrar v. Churchill, 135 U. S. 609; Conboy v. Bank, 203 U. S. 141. The same rule is applicable to appeals as to writs of error. Section 1012, Revised Statutes. As Mr. Justice Bradley said in Credit Company v. Arkansas Central Railway, 128 U. S. 261: “An appeal cannot be said to be ‘taken’ any more than a writ of error can be said to be ‘ brought ’ until it is, in some way, presented to the court which made the decree appealed from, thereby putting an end to its jurisdiction over the cause, and making it its duty to send it to the appellate court.” There the appeal was allowed by Mr. Justice Miller on the last day on which an appeal could be taken (Revised Statutes, § 1008), but was not presented to the court below nor filed with the clerk until five days after the prescribed time had expired. It was held that the appeal must be dismissed, and Mr. Justice Bradley added: “The attempt made, in this case, to anticipate the actual time of presenting and filing the appeal, by entering an order nunc pro tunc, does not help the case. When the time for taking an appeal has expired, it cannot be arrested or called back by a simple order of court. If it could be, the law which limits the time within which an appeal can be taken would be a dead letter.” In" }, { "docid": "22130454", "title": "", "text": "Jam,. 27, 1885. Ralph, L. Goodrich, clerks'] This is all that is shown by the record in regard to the taking of the appeal; from which it appears that the appeal was allowed by Justice Miller on the last day on which an appeal could.be taken,\"'but was not presented to the court below, nor filed with the clerk, until five days after said time had expired. The language of the statute is, that “ no judgment, decree' or order of a Circuit or District Court, in any civil action at law or in equity, shall be reviewed in the Supreme Court on writ of error or appeal unless the writ of error is' brought, or the appeal is taken, within two years after the entry of such judgment, decree or order.” Rev. Stat. § 1008. It was decided in Brooks v. Norris, 11 How. 203, that “ the writ of error is not brought, in the legal meaning of the term, until it is filed in the court which rendered the judgment.” And Chief Justice Taney, speaking for the court said: “It is the filing of the writ that removes the record from the inferior to the Appellate Court, and the period of limitation prescribed by the act of Congress must be calculated accordingly. The day on which the writ may have been issued by the clerk, or the day on which it is tested, are not material in deciding the question.” p. 207. This decision has always been adhered to. See Mussina v. Gavazos, 6 Wall. 355; Scarborough v. Pargoud, 108 U. S. 567; Polleys v. Black River Co., 113 U. S. 81. The same rule is applicable to appeals as to writs of error. Section 1012 of the Revised Statutés declares that “appeals from the Circuit Courts, and District Courts acting as Circuit Courts, and from District Courts in prize causes, shall be subject to the same rules, regulations,, and restrictions as are or may be prescribed in law in cases of error.” This provision applies to the time within which appeals may be brought, as well as" } ]

[ { "docid": "20396567", "title": "", "text": "the mail fraud statute apply extraterritorially.”), rev’d and remanded on other grounds, — U.S.-, 136 S.Ct. 2090, 195 L.Ed.2d 476. Consequently, the Court must determine whether a reasonable jury could find that Grossman engaged in conduct relevant.to the focus of the mail fraud statute. The Second Circuit has held that the “essential elements” of mail fraud are: “[i] a scheme to defraud, [ii] money or property as the object of the scheme, and [iii] use of the mails ... to further the scheme.” United States v. Binday, 804 F.3d 558, 569 (2d Cir. 2015) (quoting Fountain v. United States, 357 F.3d 250, 255 (2d Cir. 2004)). Thus, the mail fraud statute forbids a particular class of frauds (i.e., frauds that are designed to take money or property, and that involve the U.S. mails). These frauds are properly considered the “focus” of § 1341. See Morrison, 561 U.S. at 267, 130 S.Ct. 2869 (suggesting that the “focus” of a statute is the set of transactions that the statute seeks to “reg ulate”); Chevron Corp. v. Donziger, 974 F.Supp.2d 362, 571 (S.D.N.Y. 2014) (same). It is not entirely clear what sort of domestic conduct is “relevant” to this statutory focus. RJR Nabisco, 136 S.Ct. at 2101. The Supreme Court and the Second Circuit have cautioned that minimal domestic conduct may not be “relevant” to a statute’s focus, even if the conduct advances a plan to violate the statute. See Morrison, 561 U.S. at 266, 130 S.Ct. 2869 (explaining that the presumption against extraterritoriality applies even where “some domestic activity is involved in [a] case”); Petroleos Mexicanos v. Conproca S.A. de C.V., 572 Fed.Appx. 60, 61 (2d Cir. 2014) (summary order) (holding that wire fraud can occur extraterritorially, even if money is wired from a U.S. bank in furtherance of a fraudulent scheme). Thus, the Court believes that a defendant commits conduct “relevant” to the focus of the mail fraud statute only when: (i) the defendant commits a substantial amount of conduct in the United States; and (ii) the conduct is integral to the commission of a fraud; and (iii) at least some" } ]

[ { "docid": "19538725", "title": "", "text": "abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory. What if we find at step one that a statute clearly does have extraterritorial effect? Neither Morrison nor Kiobel involved such a finding. But we addressed this issue in Morrison, explaining that it was necessary to consider § 10(b)'s \"focus\" only because we found that the statute does not apply extraterritorially: \"If § 10(b) did apply abroad, we would not need to determine which transnational frauds it applied to; it would apply to all of them (barring some other limitation).\" 561 U.S., at 267, n. 9, 130 S.Ct. 2869. The scope of an extraterritorial statute thus turns on the limits Congress has (or has not) imposed on the statute's foreign application, and not on the statute's \"focus.\" III With these guiding principles in mind, we first consider whether RICO's substantive prohibitions in § 1962may apply to foreign conduct. Unlike in Morrison and Kiobel, we find that the presumption against extraterritoriality has been rebutted-but only with respect to certain applications of the statute. A The most obvious textual clue is that RICO defines racketeering activity to include a number of predicates that plainly apply to at least some foreign conduct. These predicates include the prohibition against engaging in monetary transactions in criminally derived property, which expressly applies, when \"the defendant is a United States person,\" to offenses that \"tak[e] place outside the United States.\" 18 U.S.C. § 1957(d)(2). Other examples include the prohibitions against the assassination of Government officials, § 351(i)( \"There is extraterritorial jurisdiction over the conduct prohibited by this section\"); § 1751(k) (same), and the prohibition against hostage taking, which applies to conduct that \"occurred outside the United States\" if either the hostage or the offender is a U.S. national, if the offender is found in the United States, or if the hostage taking is done to compel action by the U.S. Government, § 1203(b). At least one predicate-the prohibition against \"kill[ing] a national of the United" }, { "docid": "20396568", "title": "", "text": "974 F.Supp.2d 362, 571 (S.D.N.Y. 2014) (same). It is not entirely clear what sort of domestic conduct is “relevant” to this statutory focus. RJR Nabisco, 136 S.Ct. at 2101. The Supreme Court and the Second Circuit have cautioned that minimal domestic conduct may not be “relevant” to a statute’s focus, even if the conduct advances a plan to violate the statute. See Morrison, 561 U.S. at 266, 130 S.Ct. 2869 (explaining that the presumption against extraterritoriality applies even where “some domestic activity is involved in [a] case”); Petroleos Mexicanos v. Conproca S.A. de C.V., 572 Fed.Appx. 60, 61 (2d Cir. 2014) (summary order) (holding that wire fraud can occur extraterritorially, even if money is wired from a U.S. bank in furtherance of a fraudulent scheme). Thus, the Court believes that a defendant commits conduct “relevant” to the focus of the mail fraud statute only when: (i) the defendant commits a substantial amount of conduct in the United States; and (ii) the conduct is integral to the commission of a fraud; and (iii) at least some of the conduct involves the use of the U.S. mails. Applying these principles, the Court believes that the record contains adequate evidence that Grossman committed a substantial amount of conduct in the United States, and the conduct was integral to the commission of his fraud. Gross-man testified that he specifically established IBIS—a New York Corporation—so that he could pay for the fraudulent subscription orders. (Tr. 348-50). In addition, Grossman testified that IBIS had an “office” in Garden City, New York and that he occasionally received journals at this office, before redirecting them to Brazilian end users. (Id. at 342, 348-50). Without the use of IBIS and its office, Grossman’s fraud would have been foiled by Brazilian regulations and, occasionally, by quirks in the Brazilian postal system. (Id.). Cf. Chevron Corp., 974 F.Supp.2d at 574-75 (finding that the defendants had violated criminal laws domestically in part because, “[a]bsent the[ir] U.S. activity ... [the fraud] ... would have been doomed to failure”). And as explained above, at least some of Grossman’s conduct involved the use of U.S." }, { "docid": "19626320", "title": "", "text": "'protec[t]' \" or vindicate. Morrison, supra, at 267, 130 S.Ct. 2869 (quoting Superintendent of Ins. of N.Y. v. Bankers Life & Casualty Co., 404 U.S. 6, 12, 10, 92 S.Ct. 165, 30 L.Ed.2d 128 (1971) ). \"If the conduct relevant to the statute's focus occurred in the United States, then the case involves a permissible domestic application\" of the statute, \"even if other conduct occurred abroad.\" RJR Nabisco, 579 U.S., at ----, 136 S.Ct., at 2101. But if the relevant conduct occurred in another country, \"then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory.\"Ibid. When determining the focus of a statute, we do not analyze the provision at issue in a vacuum. See Morrison, supra, at 267-269, 130 S.Ct. 2869. If the statutory provision at issue works in tandem with other provisions, it must be assessed in concert with those other provisions. Otherwise, it would be impossible to accurately determine whether the application of the statute in the case is a \"domestic application.\" RJR Nabisco, 579 U.S., at ----, 136 S.Ct., at 2101. And determining how the statute has actually been applied is the whole point of the focus test. See ibid. Applying these principles here, we conclude that the conduct relevant to the statutory focus in this case is domestic. We begin with § 284. It provides a general damages remedy for the various types of patent infringement identified in the Patent Act. The portion of § 284 at issue here states that \"the court shall award the claimant damages adequate to compensate for the infringement.\" We conclude that \"the infringement\" is the focus of this statute. As this Court has explained, the \"overriding purpose\" of § 284 is to \"affor[d] patent owners complete compensation\" for infringements. General Motors Corp. v. Devex Corp., 461 U.S. 648, 655, 103 S.Ct. 2058, 76 L.Ed.2d 211 (1983). \"The question\" posed by the statute is \" 'how much ha[s] the Patent Holder ... suffered by the infringement.' \" Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 507, 84 S.Ct. 1526, 12" }, { "docid": "19538724", "title": "", "text": "any clear indication that it extended to the foreign violations alleged in that case. Id., at ---- - ----, 133 S.Ct., at 1665-1669. Because \"all the relevant conduct\" regarding those violations \"took place outside the United States,\" id., at ----, 133 S.Ct., at 1670, we did not need to determine, as we did in Morrison, the statute's \"focus.\" Morrison and Kiobel reflect a two-step framework for analyzing extraterritoriality issues. At the first step, we ask whether the presumption against extraterritoriality has been rebutted-that is, whether the statute gives a clear, affirmative indication that it applies extraterritorially. We must ask this question regardless of whether the statute in question regulates conduct, affords relief, or merely confers jurisdiction. If the statute is not extraterritorial, then at the second step we determine whether the case involves a domestic application of the statute, and we do this by looking to the statute's \"focus.\" If the conduct relevant to the statute's focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory. What if we find at step one that a statute clearly does have extraterritorial effect? Neither Morrison nor Kiobel involved such a finding. But we addressed this issue in Morrison, explaining that it was necessary to consider § 10(b)'s \"focus\" only because we found that the statute does not apply extraterritorially: \"If § 10(b) did apply abroad, we would not need to determine which transnational frauds it applied to; it would apply to all of them (barring some other limitation).\" 561 U.S., at 267, n. 9, 130 S.Ct. 2869. The scope of an extraterritorial statute thus turns on the limits Congress has (or has not) imposed on the statute's foreign application, and not on the statute's \"focus.\" III With these guiding principles in mind, we first consider whether RICO's substantive prohibitions in § 1962may apply to foreign conduct. Unlike in Morrison and Kiobel," }, { "docid": "8992365", "title": "", "text": "application.”); Norex Petrol., 631 F.3d at 32-33 (same). Accordingly, and contrary to Plaintiffs’ unsupported contention that “Congress intended for RICO to have extraterritorial application” (id.), the Court concludes that RICO does not apply extraterritorially. Norex Petrol., 631 F.3d at 32-33. Plaintiffs attempt to evade this extraterritorial limitation by arguing that the “key transactions” giving rise to their claims originated in the United States. Morrison acknowledged that the presumption against extraterritorial application of a statute was not always dispositive. 130 S.Ct. at 2884. The Morrison plaintiffs, for example, contended that they sought no more than domestic application of § 10(b) because the corporate defendant and its senior executives “engaged in deceptive conduct manipulating [corporate defendant’s] financial models” and “made misleading public statements” domestically— that is, in Florida. Id. at 2883-84. However, the Court cautioned that “the presumption against extraterritorial application would be a craven watchdog indeed if it retreated to its kennel whenever some domestic activity is involved in the case” because “it is a rare case of prohibited extraterritorial application that lacks all contact with the territory of the United States.” Id. at 2884 (emphasis in original). The Court held that “the place where the deception originated,” even if in the United States, did not alter the Court’s analysis because “the focus of the Exchange Act is ... upon purchases and sales of securities in the United States.” Id. (emphasis added). Because the securities in question were not listed on “a domestic exchange, and all aspects of the purchases complained of by [plaintiffs] who still have live claims occurred outside the United States,” the Court held that plaintiffs failed to state a claim. Id. at 2888. It is unclear how Morrison’s logic, which evaluates the “focus” of the relevant statute, precisely translates to RICO. See id. at 2888 (Breyer, J., concurring) (noting that while § 10(b) does not cover the fraudulent activity alleged in Morrison, other “state law or other federal fraud statutes, see, e.g., 18 U.S.C. § 1341 (mail fraud), § 1343 (wire fraud), may apply”); European Cmty. v. RJR Nabisco, Inc., No. 02-CV-5771 (NGG)(VVP), 2011 WL 843957, at" }, { "docid": "19626318", "title": "", "text": "asks \"whether the presumption against extraterritoriality has been rebutted.\" RJR Nabisco, Inc. v. European Community, 579 U.S. ----, ----, 136 S.Ct. 2090, 2101, 195 L.Ed.2d 476 (2016). It can be rebutted only if the text provides a \"clear indication of an extraterritorial application.\" Morrison v. National Australia Bank Ltd., 561 U.S. 247, 255, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). If the presumption against extraterritoriality has not been rebutted, the second step of our framework asks \"whether the case involves a domestic application of the statute.\" RJR Nabisco, 579 U.S., at ----, 136 S.Ct., at 2101. Courts make this determination by identifying \"the statute's 'focus' \" and asking whether the conduct relevant to that focus occurred in United States territory. Ibid. If it did, then the case involves a permissible domestic application of the statute. See ibid. We resolve this case at step two. While \"it will usually be preferable\" to begin with step one, courts have the discretion to begin at step two \"in appropriate cases.\" See id., at ----, n. 5, 136 S.Ct., at 2101, n. 5 (citing Pearson v. Callahan, 555 U.S. 223, 236-243, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). One reason to exercise that discretion is if addressing step one would require resolving \"difficult questions\" that do not change \"the outcome of the case,\" but could have far-reaching effects in future cases. See id., at 236-237, 129 S.Ct. 808. That is true here. WesternGeco argues that the presumption against extraterritoriality should never apply to statutes, such as § 284, that merely provide a general damages remedy for conduct that Congress has declared unlawful. Resolving that question could implicate many other statutes besides the Patent Act. We therefore exercise our discretion to forgo the first step of our extraterritoriality framework. A Under the second step of our framework, we must identify \"the statute's 'focus.' \" RJR Nabisco, supra, at ----, 136 S.Ct., at 2101. The focus of a statute is \"the objec[t] of [its] solicitude,\" which can include the conduct it \"seeks to 'regulate,' \" as well as the parties and interests it \"seeks to" }, { "docid": "19578739", "title": "", "text": "a domestic application of that statute. If the conduct relevant to the statute's focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory. RJR Nabisco , 136 S.Ct. at 2101. The Supreme Court recently explained how to identify a statute's focus in WesternGeco LLC v. ION Geophysical Corp. , --- U.S. ----, 138 S.Ct. 2129, 201 L.Ed.2d 584 (2018). WesternGeco involved § 271(f) of the Patent Act, which prohibits the export of component parts of a patented product for assembly abroad. Id. at 2135 (citing 35 U.S.C. § 271(f)(2) ). Plaintiffs alleging infringement under § 271(f)(2) can recover damages under 35 U.S.C. § 284. Id. The Federal Circuit held that § 271(f) does not allow plaintiffs to recover for lost foreign sales and vacated a jury award premised on such damages. Id. (citing WesternGeco LLC v. ION Geophysical Corp. , 791 F.3d 1340, 1343 (Fed. Cir. 2015) ). Reversing, the Supreme Court explained that \"[t]he focus of a statute is 'the object of its solicitude,' which can include the conduct it 'seeks to regulate,' as well as the parties and interests it 'seeks to protect' or vindicate.\" Id. at 2137 (brackets omitted) (quoting Morrison v. Nat'l Austl. Bank Ltd. , 561 U.S. 247, 267, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010) ). \"When determining the focus of a statute, we do not analyze the provision at issue in a vacuum.\" Id. (citing Morrison , 561 U.S. at 267-69, 130 S.Ct. 2869 ). Instead: If the statutory provision at issue works in tandem with other provisions, it must be assessed in concert with those other provisions. Otherwise, it would be impossible to accurately determine whether the application of the statute in the case is a \"domestic application.\" And determining how the statute has actually been applied is the whole point of the focus test. Id. (citation omitted) (citing RJR Nabisco" }, { "docid": "20983870", "title": "", "text": "at 371, 125 S.Ct. 1766. However, Pasquantino was decided in 2005, before the Supreme Court articulated a presumption against extraterritoriality in Morrison v. National Australia Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). It is true that the Morrison court distinguished, rather than overruled, Pasquantino. But it did so by noting that that the wire fraud at issue in Pasquantino’ “was complete the moment they executed the scheme inside the United States,’ ” and further noting that it was “[t]his domestic element of petitioners’ conduct [that] the Government is punishing.’” Morrison, 561 U.S. at 272, 130 S.Ct. 2869 (quoting Pasquantino, 544 U.S. at 371, 125 S.Ct. 1766) (emphases added). Four years later, applying Morrison in the RICO context, the Second Circuit explicitly held that the wire fraud statute does not apply extraterritorially. See RJR Nabisco, Inc., 764 F.3d 129, 139 (2d Cir.2014) (“[W]e conclude that the wire fraud and money fraud statutes ... do not overcome Morrison’s presumption against extraterritoriality”). In light of the Morrison presumption, the Second Circuit has also rejected as dicta the language in Pasquantind that implied the wire fraud statute could apply to non-domestic schemes. RJR Nabisco, Inc., 764 F.3d at 141 n. 11. Still, this does not end the inquiry. In RJR Nabisco, Inc., the Second Circuit held that even where the criminal enterprise is foreign, a predicate act of wire fraud may allow for extraterritorial application where “all elements of the wire fraud ... were completed in the United States or while crossing U.S. borders[.]” 764 F.3d at 139. The Second Circuit therefore found that the wire fraud statute could still apply to the conduct at issue in RJR Nabisco, Inc., where the extensive allegations detailed that the scheme was allegedly both hatched in and directed at the U.S. In so ruling,, the Second Circuit stated: “We need not decide whether domestic conduct satisfying fewer than all of the [wire fraud] statute’s essential elements could constitute a violation of such a statute.” Id. at 142 n. 14. The Second Circuit added: ‘We need not now decide precisely how to draw" }, { "docid": "19538723", "title": "", "text": "domestic application of § 10(b) because it alleged that some of the relevant misrepresentations were made in the United States. At this second step, we considered the \" 'focus' of congressional concern,\" asking whether § 10(b)'s focus is \"the place where the deception originated\" or rather \"purchases and sale of securities in the United States.\" Id., at 266, 130 S.Ct. 2869. We concluded that the statute's focus is on domestic securities transactions, and we therefore held that the statute does not apply to frauds in connection with foreign securities transactions, even if those frauds involve domestic misrepresentations. In Kiobel, we considered whether the Alien Tort Statute (ATS) confers federal-court jurisdiction over causes of action alleging international-law violations committed overseas. We acknowledged that the presumption against extraterritoriality is \"typically\" applied to statutes \"regulating conduct,\" but we concluded that the principles supporting the presumption should \"similarly constrain courts considering causes of action that may be brought under the ATS.\" 569 U.S., at ----, 133 S.Ct., at 1664. We applied the presumption and held that the ATS lacks any clear indication that it extended to the foreign violations alleged in that case. Id., at ---- - ----, 133 S.Ct., at 1665-1669. Because \"all the relevant conduct\" regarding those violations \"took place outside the United States,\" id., at ----, 133 S.Ct., at 1670, we did not need to determine, as we did in Morrison, the statute's \"focus.\" Morrison and Kiobel reflect a two-step framework for analyzing extraterritoriality issues. At the first step, we ask whether the presumption against extraterritoriality has been rebutted-that is, whether the statute gives a clear, affirmative indication that it applies extraterritorially. We must ask this question regardless of whether the statute in question regulates conduct, affords relief, or merely confers jurisdiction. If the statute is not extraterritorial, then at the second step we determine whether the case involves a domestic application of the statute, and we do this by looking to the statute's \"focus.\" If the conduct relevant to the statute's focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred" }, { "docid": "20396560", "title": "", "text": "the judiciary—is the entity navigating the “delicate field of international relations.” Kiobel v. Royal Dutch Petroleum Co., — U.S.-, 133 S.Ct. 1659, 1664, 185 L.Ed.2d 671 (2013). To determine whether the presumption against extraterritoriality limits the reach of a statutory provision in a particular case, a court must employ a two-step procedure. At the first step, the Court asks “whether the presumption against extraterritoriality has been rebutted—that is, whether the statute gives a clear, affirmative indication that it applies extraterri-torially.” RJR Nabisco, 136 S.Ct. at 2101. The court “must ask this question regardless of whether the statute in question regulates conduct, affords relief, or merely confers jurisdiction.” Id. If the statute applies extraterritorially, then the Court’s inquiry is at its end. See id. However, if there is nothing in the statute to rebut the presumption against extraterritoriality, the court must proceed to the second step •of the analysis, which requires the court to consider whether the case involves a domestic or extraterritorial application of the relevant law. RJR Nabisco, 136 S.Ct. at 2101. A court “do[es] this by looking to the statute’s ‘focus’”: If the conduct relevant to the statute’s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory. Id.; accord In Matter of Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp., 829 F.3d 197, 210-11 (2d Cir. 2016). ii. Extraterritoriality of the RICO Statutes In RJR Nabisco, the Supreme Court applied this two-step framework to determine the extent to which the “substantive prohibitions in § 1962 may apply to foreign conduct.” 136 S.Ct. at 2101. At step one, the Court found that § 1962 “gives a clear, affirmative indication that [it] applies to foreign racketeering activity—but only to the extent that the predicates alleged in a particular case themselves apply extraterritorially.” Id. at 2102. Thus, for any crime to constitute a proper" }, { "docid": "19578738", "title": "", "text": "domestic application.\" Id. This canon helps \"avoid the international discord that can result when U.S. law is applied to conduct in foreign countries.\" Id. It also reflects the \"commonsense notion that Congress generally legislates with domestic concerns in mind.\" Id. (quoting Smith v. United States , 507 U.S. 197, 204 n.5, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1993) ). An action may proceed if either the statute indicates its extraterritorial reach or the case involves a domestic application of the statute. The courts below found that neither criterion was satisfied and accordingly dismissed these actions. Because the reach and applicability of a statute are questions of statutory interpretation, we review a lower court's application of the presumption against extraterritoriality de novo . See, e.g. , Roach v. Morse , 440 F.3d 53, 56 (2d Cir. 2006). A. The Focus of § 550(a) in These Actions Is on the Debtor's Fraudulent Transfer of Property to the Initial Transferee. The Supreme Court teaches that we must look to a statute's \"focus\" to determine whether a case involves a domestic application of that statute. If the conduct relevant to the statute's focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory. RJR Nabisco , 136 S.Ct. at 2101. The Supreme Court recently explained how to identify a statute's focus in WesternGeco LLC v. ION Geophysical Corp. , --- U.S. ----, 138 S.Ct. 2129, 201 L.Ed.2d 584 (2018). WesternGeco involved § 271(f) of the Patent Act, which prohibits the export of component parts of a patented product for assembly abroad. Id. at 2135 (citing 35 U.S.C. § 271(f)(2) ). Plaintiffs alleging infringement under § 271(f)(2) can recover damages under 35 U.S.C. § 284. Id. The Federal Circuit held that § 271(f) does not allow plaintiffs to recover for lost foreign sales and vacated a jury award premised on such damages. Id. (citing WesternGeco" }, { "docid": "20396565", "title": "", "text": "within what Congress meant to capture in enacting RICO. Congress, after all, does not usually exempt foreigners acting in the United States from U.S. legal requirements. See 764 F.3d at 138 (“Surely the presumption against extraterritorial application of United States laws does not command giving foreigners carte blanche to violate the laws of the United States in the United States”). Yet [a domestic enterprise requirement] would insulate this scheme from RICO liability[.] Id. at 2104. These “practical problems” with a domestic enterprise requirement bolstered the Court’s “conclusion, based on RICO’s text and context, that Congress intended- the prohibitions in 18 U.S.C. §§ 1962(b) and (c) to apply extraterritorially in tandem with the underlying predicates, without regard to the locus of the enterprise.” (Id. at 2105). Thus, Grossman cannot escape RICO liability merely because he participated in a Brazilian enterprise. iv. Plaintiffs’ RICO Case Does Not Turn on Extraterritorial Applications of the Wire Fraud Statute Construed liberally, Grossman’s briefs suggest that this case involves an impermissible extraterritorial application of RICO because: (i) the RICO predicates at issue in this case are instances of mail fraud; (ii) the mail fraud statute only applies domestically; and (iii) a reasonable jury could not find that Grossman engaged in domestic conduct relevant to the “focus” of the mail fraud statute. RJR Nabisco, 136 S.Ct. at 2101. (See, e.g., Def. RICO Br. 5 (“This case[ ] [is] cobbled together out of mail-fraud allegations!)]”); id. (“[T]here is no basis for finding ... that the mail fraud statute applies] extraterritorially, ’ (internal quotation marks omitted)); id. (“This case ... is a foreign dispute that is beyond the domestic focus of RICO.”)). To the extent Grossman is raising this argument, the Court now, rejects it. It is undisputed that the RICO predicates, at issue here are violations of the mail fraud statute, 18 U.S.C. § 1341, and that the mail fraud statute only applies domestically. (Def. RICO Br. 5; PI. RICO Opp. 13). See European Cmty. v. RJR Nabisco, Inc., 764 F.3d 129, 141 (2d Cir. 2014) (“[W]e see no basis for finding a manifestation of congressional intent that" }, { "docid": "20396566", "title": "", "text": "issue in this case are instances of mail fraud; (ii) the mail fraud statute only applies domestically; and (iii) a reasonable jury could not find that Grossman engaged in domestic conduct relevant to the “focus” of the mail fraud statute. RJR Nabisco, 136 S.Ct. at 2101. (See, e.g., Def. RICO Br. 5 (“This case[ ] [is] cobbled together out of mail-fraud allegations!)]”); id. (“[T]here is no basis for finding ... that the mail fraud statute applies] extraterritorially, ’ (internal quotation marks omitted)); id. (“This case ... is a foreign dispute that is beyond the domestic focus of RICO.”)). To the extent Grossman is raising this argument, the Court now, rejects it. It is undisputed that the RICO predicates, at issue here are violations of the mail fraud statute, 18 U.S.C. § 1341, and that the mail fraud statute only applies domestically. (Def. RICO Br. 5; PI. RICO Opp. 13). See European Cmty. v. RJR Nabisco, Inc., 764 F.3d 129, 141 (2d Cir. 2014) (“[W]e see no basis for finding a manifestation of congressional intent that the mail fraud statute apply extraterritorially.”), rev’d and remanded on other grounds, — U.S.-, 136 S.Ct. 2090, 195 L.Ed.2d 476. Consequently, the Court must determine whether a reasonable jury could find that Grossman engaged in conduct relevant.to the focus of the mail fraud statute. The Second Circuit has held that the “essential elements” of mail fraud are: “[i] a scheme to defraud, [ii] money or property as the object of the scheme, and [iii] use of the mails ... to further the scheme.” United States v. Binday, 804 F.3d 558, 569 (2d Cir. 2015) (quoting Fountain v. United States, 357 F.3d 250, 255 (2d Cir. 2004)). Thus, the mail fraud statute forbids a particular class of frauds (i.e., frauds that are designed to take money or property, and that involve the U.S. mails). These frauds are properly considered the “focus” of § 1341. See Morrison, 561 U.S. at 267, 130 S.Ct. 2869 (suggesting that the “focus” of a statute is the set of transactions that the statute seeks to “reg ulate”); Chevron Corp. v. Donziger," }, { "docid": "12886501", "title": "", "text": "argument to you, so it’s not that we presented it and you missed it. It was that this is a new argument that wasn’t presented before and it would result in a manifest error of law if it were to stand going forward, and therefore we're presenting it to the Court now and giving the Court an opportunity to consider it. . In a case decided last June, the Supreme Court clarified its test for deciding whether a statute applies extraterritorially. See RJR Nabisco, Inc, v. European Cmty., - U.S. -, 136 S.Ct. 2090, 2101, 195 L.Ed.2d 476 (2016). Morrison and Kiobel reflect a two-step framework for analyzing extraterritoriality issues. At the first step, we ask whether the presumption against extraterritoriality has been rebutted — that is, whether the statute gives a clear, affirmative indication that it applies extraterritorially. We must ask this question regardless of whether the statute in question regulates conduct, affords relief, or merely confers jurisdiction. If the statute is not extraterritorial, then at the second step we determine whether the case involves a domestic application of the statute, and we do this by looking to the statute’s \"focus.” If the conduct relevant to the statute’s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory. Id. (citing and discussing Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010) and Kiobel v. Royal Dutch Petroleum Co., - U.S. -, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013)). . We also find Celaya’s argument that he was no longer a member of the conspiracy at the time of the Detroit shipment to be without any factual basis in the record. As counsel for Celaya conceded at oral argument, this would require a showing that Celaya had withdrawn from the conspiracy sometime between 2011 and the June 2012 shipment, and he has" }, { "docid": "19538732", "title": "", "text": "B RJR contends that, even if RICO may apply to foreign patterns of racketeering, the statute does not apply to foreign enterprises . Invoking Morrison 's discussion of the Exchange Act's \"focus,\" RJR says that the \"focus\" of RICO is the enterprise being corrupted-not the pattern of racketeering-and that RICO's enterprise element gives no clear indication of extraterritorial effect. Accordingly, RJR reasons, RICO requires a domestic enterprise. This argument misunderstands Morrison . As explained above, supra, at 2100 - 2101, only at the second step of the inquiry do we consider a statute's \"focus.\" Here, however, there is a clear indication at step one that RICO applies extraterritorially. We therefore do not proceed to the \"focus\" step. The Morrison Court's discussion of the statutory \"focus\" made this clear, stating that \"[i]f § 10(b) did apply abroad, we would not need to determine which transnational frauds it applied to; it would apply to all of them (barring some other limitation).\" 561 U.S., at 267, n. 9, 130 S.Ct. 2869. The same is true here. RICO-or at least §§ 1962(b)and (c)-applies abroad, and so we do not need to determine which transnational (or wholly foreign) patterns of racketeering it applies to; it applies to all of them, regardless of whether they are connected to a \"foreign\" or \"domestic\" enterprise. This rule is, of course, subject to the important limitation that RICO covers foreign predicate offenses only to the extent that the underlying predicate statutes are extraterritorial. But within those bounds, the location of the affected enterprise does not impose an independent constraint. It is easy to see why Congress did not limit RICO to domestic enterprises. A domestic enterprise requirement would lead to difficult line-drawing problems and counterintuitive results. It would exclude from RICO's reach foreign enterprises-whether corporations, crime rings, other associations, or individuals-that operate within the United States. Imagine, for example, that a foreign corporation has operations in the United States and that one of the corporation's managers in the United States conducts its U.S. affairs through a pattern of extortion and mail fraud. Such domestic conduct would seem to fall" }, { "docid": "19626317", "title": "", "text": "United States.\" Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 93 L.Ed. 680 (1949). This principle, commonly called the presumption against extraterritoriality, has deep roots. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts § 43, p. 268 (2012) (tracing it to the medieval maxim Statuta suo clauduntur territorio, nec ultra territorium disponunt ); e.g., United States v. Palmer, 3 Wheat. 610, 631, 4 L.Ed. 471 (1818) (Marshall, C.J.) (\"[G]eneral words must ... be limited to cases within the jurisdiction of the state\"). The presumption rests on \"the commonsense notion that Congress generally legislates with domestic concerns in mind.\" Smith v. United States, 507 U.S. 197, 204, n. 5, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1993). And it prevents \"unintended clashes between our laws and those of other nations which could result in international discord.\" EEOC v. Arabian American Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991). This Court has established a two-step framework for deciding questions of extraterritoriality. The first step asks \"whether the presumption against extraterritoriality has been rebutted.\" RJR Nabisco, Inc. v. European Community, 579 U.S. ----, ----, 136 S.Ct. 2090, 2101, 195 L.Ed.2d 476 (2016). It can be rebutted only if the text provides a \"clear indication of an extraterritorial application.\" Morrison v. National Australia Bank Ltd., 561 U.S. 247, 255, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). If the presumption against extraterritoriality has not been rebutted, the second step of our framework asks \"whether the case involves a domestic application of the statute.\" RJR Nabisco, 579 U.S., at ----, 136 S.Ct., at 2101. Courts make this determination by identifying \"the statute's 'focus' \" and asking whether the conduct relevant to that focus occurred in United States territory. Ibid. If it did, then the case involves a permissible domestic application of the statute. See ibid. We resolve this case at step two. While \"it will usually be preferable\" to begin with step one, courts have the discretion to begin at step two \"in appropriate cases.\" See id., at ----, n. 5, 136 S.Ct.," }, { "docid": "19626319", "title": "", "text": "at 2101, n. 5 (citing Pearson v. Callahan, 555 U.S. 223, 236-243, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). One reason to exercise that discretion is if addressing step one would require resolving \"difficult questions\" that do not change \"the outcome of the case,\" but could have far-reaching effects in future cases. See id., at 236-237, 129 S.Ct. 808. That is true here. WesternGeco argues that the presumption against extraterritoriality should never apply to statutes, such as § 284, that merely provide a general damages remedy for conduct that Congress has declared unlawful. Resolving that question could implicate many other statutes besides the Patent Act. We therefore exercise our discretion to forgo the first step of our extraterritoriality framework. A Under the second step of our framework, we must identify \"the statute's 'focus.' \" RJR Nabisco, supra, at ----, 136 S.Ct., at 2101. The focus of a statute is \"the objec[t] of [its] solicitude,\" which can include the conduct it \"seeks to 'regulate,' \" as well as the parties and interests it \"seeks to 'protec[t]' \" or vindicate. Morrison, supra, at 267, 130 S.Ct. 2869 (quoting Superintendent of Ins. of N.Y. v. Bankers Life & Casualty Co., 404 U.S. 6, 12, 10, 92 S.Ct. 165, 30 L.Ed.2d 128 (1971) ). \"If the conduct relevant to the statute's focus occurred in the United States, then the case involves a permissible domestic application\" of the statute, \"even if other conduct occurred abroad.\" RJR Nabisco, 579 U.S., at ----, 136 S.Ct., at 2101. But if the relevant conduct occurred in another country, \"then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory.\"Ibid. When determining the focus of a statute, we do not analyze the provision at issue in a vacuum. See Morrison, supra, at 267-269, 130 S.Ct. 2869. If the statutory provision at issue works in tandem with other provisions, it must be assessed in concert with those other provisions. Otherwise, it would be impossible to accurately determine whether the application of the statute in the case is a \"domestic application.\" RJR Nabisco, 579" }, { "docid": "12886502", "title": "", "text": "involves a domestic application of the statute, and we do this by looking to the statute’s \"focus.” If the conduct relevant to the statute’s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory. Id. (citing and discussing Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010) and Kiobel v. Royal Dutch Petroleum Co., - U.S. -, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013)). . We also find Celaya’s argument that he was no longer a member of the conspiracy at the time of the Detroit shipment to be without any factual basis in the record. As counsel for Celaya conceded at oral argument, this would require a showing that Celaya had withdrawn from the conspiracy sometime between 2011 and the June 2012 shipment, and he has made no such showing. . Even the two circuits that have not categorically refused to rule out manufactured venue have emphasized that it would only be viable in cases of extreme government misconduct. See United States v. Chi Tong Kuok, 671 F.3d 931, 938 (9th Cir. 2012) (electing not to reach the question of whether a manufactured venue challenge might succeed because there was nothing “extreme” about an Immigration and Customs Enforcement undercover operation, based in San Diego, deciding to cash the foreign defendant’s money order for arms sales in a bank in San Diego, thus leading to venue in the Southern District of California); United States v. Myers, 692 F.2d 823, 847 n.21 (2d Cir. 1982) (not precluding a possible manufactured venue defense \"in which key events occur in one district, but the prosecution, preferring trial elsewhere, lures a defendant to a distant district for some minor event simply to establish venue,” but finding that standard inapplicable in that case). Indeed, in a more recent case, the Second Circuit noted that \"[i]n the quarter" }, { "docid": "21769980", "title": "", "text": "Nabisco, Inc. v. European Community, — U.S. -, 136 S.Ct. 2090, 2096, 195 L.Ed.2d 476 (2016), a case dealing with extraterritorial application of the Racketeer Influenced and Corrupt Organizations Act (RICO). The Supreme Court clarified that courts must begin with the presumption that United States statutes do not apply to foreign conduct. See id. at 2100. It explained that a two-step framework must be applied to determine if that presumption has been overcome. See id. at 2101. Such framework treats the presumption against extraterritoriality as a substantive canon of construction. Daniel Sullivan & Kevin Benish, Statutory Interpretation and the Morrison Presumption Against Extraterritoriality, 85 U.S.L.W. 1290 (March 23, 2017). First, the court must determine whether the presumption against extraterritorial application has been rebutted by “clear [and] affirmative indication” in the statute. Id. Second, if a determination is made that the statute does not apply extraterritorially, the court must determine whether the case at hand “involves a domestic application of the statute” by analyzing the “focus” of the statute. Id. If the presumption is rebutted at step one, there is no need to proceed to the second step of the analysis. See id. The Court held that certain of RICO’s substantive provisions apply extra-territorially because the language of those provisions expressly references conduct that occurs outside the United States. See id. at 2101-02. Having made that ruling, the Supreme Court did not proceed to step two of the analysis. See id. at 2103. For similar reasons, § 922(7) and § 2778(b)(2) overcome the presumption against extraterritoriality. See RJR, 136 S.Ct. at 2100-02. Analogous to the substantive RICO statutes at issue in RJR, illegally importing weapons into the United States by its very nature targets conduct that almost always originates outside the United States. See id. at 2101-02. As we noted some time ago, “smuggling by its very nature involves foreign countries, and ... always requires some action in a foreign country.” Brulay v. United States, 383 F.2d 345, 350 (9th Cir. 1967). The fact that illegally importing weapons into the United States almost always requires some conduct in a foreign country" }, { "docid": "20396561", "title": "", "text": "“do[es] this by looking to the statute’s ‘focus’”: If the conduct relevant to the statute’s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory. Id.; accord In Matter of Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp., 829 F.3d 197, 210-11 (2d Cir. 2016). ii. Extraterritoriality of the RICO Statutes In RJR Nabisco, the Supreme Court applied this two-step framework to determine the extent to which the “substantive prohibitions in § 1962 may apply to foreign conduct.” 136 S.Ct. at 2101. At step one, the Court found that § 1962 “gives a clear, affirmative indication that [it] applies to foreign racketeering activity—but only to the extent that the predicates alleged in a particular case themselves apply extraterritorially.” Id. at 2102. Thus, for any crime to constitute a proper predicate act under RICO, the crime must involve: (i) a violation of a statute that applies extraterritorially or (ii) domestic conduct that is relevant to the “focus” of a domestic criminal statute. See id. at 2101-02. After considering the extraterritorial reach of § 1962, the Supreme Court went on to decide whether § 1964—which creates a private right of action for “[a]ny person injured in his business or property by reason of a violation of section 1962”— also applies extraterritorially. RJR Nabisco, 136 S.Ct. at 2106 (quoting 18 U.S.C. § 1964). The Court explained that “we separately apply the presumption against extraterritoriality to RICO’s cause of action despite our conclusion that the presumption has been overcome with respect to RICO’s substantive prohibitions.” Id. And “[n]othing in § 1964(c) provides a clear indication that Congress intended to create a private right of action for injuries suffered outside of the United States.” Id. at 2108. Thus, the Court concluded, “[s]ection 1964(c) requires a civil RICO plaintiff to allege and prove a domestic injury to business or property" } ]

[ { "docid": "824658", "title": "", "text": "of the counterclaim for damages caused by unfair competition is governed by the law of Illinois. Independent Nail & Packing Co., Inc. v. Stronghold Screw Products, Inc., 7 Cir., 205 F.2d 921, 926; Jewel Tea Company, Inc., v. Kraus, 7 Cir., 187 F.2d 278, 282; Radio Shack Corporation v. Radio Shack, Inc., 7 Cir., 180 F.2d 200, 202; Wilhartz v. Turco Products, 7 Cir., 164 F.2d 731, 733. Time, Inc. v. Viobin Corporation, 7 Cir., 128 F.2d 860, 862. We do not think that the Lanham Act changed this rule. We have been cited to no court authorities that have held the Lanham Act has changed the rule long established and followed in this Circuit. On the contrary, the contention that the Lanham Act creates an independent ground for federal jurisdiction, and that a claim for damages for unfair competition in the United States between American citizens is governed by the Lanham Act, as argued by defendant-counter-elaimants, has been expressly overruled in American Automobile Association, Inc. v. Spiegel, 2 Cir., 205 F.2d 771, 775; L’Aiglon Apparel, Inc. v. Lana Lobell, Inc., 3 Cir., 214 F.2d 649, 654; Royal Lace Paper Works, Inc. v. Pest-Guard Products, Inc., 5 Cir., 240 F.2d 814, 818. We agree with these decisions. Counts II and IV of the counterclaim seeking recovery for fraud and deceit and breach of contract, respectively, are common law causes of action. These claims are governed by the law of Illinois. There is.no basis under Illinois law for the assessment of treble damages or the payment of attorney fees based on claims contained in Counts I, II and IV of the counterclaim. In Patterson v. Northern Trust Company, 286 Ill. 564, 122 N.E. 55, 57, the court said: “At common law costs were never recoverable, and they can be recovered only in cases where there is statutory authority therefor. Any party claiming a judgment for his costs against his adversary must bring himself within the operation of some statutory provision, and courts have no power to adjudge costs against anyone on merely equitable grounds.” In the later case of Ritter v." } ]

[ { "docid": "11375747", "title": "", "text": "impediment to the maintenance of this action in the federal court there. That being so, we do not reach the question whether the Lanham Act itself confers independent federal jurisdiction of a claim for unfair competition affecting interstate commerce — a question not argued in this case, and one about which there is disagreement. Compare Pagliero v. Wallace China Co., 9 Cir., 1952, 198 F.2d 339, 341 and Stauffer v. Exley, 9 Cir., 1950, 184 F.2d 962, with Royal Lace Paper Works, Inc., v. Pest-Guard Products, Inc., 5 Cir., 1957, 240 F.2d 814; L’Aiglon Apparel, Inc., v. Lana Lobell, Inc., 3 Cir., 1954, 214 F.2d 649, 652, 654; and American Auto Ass’n v. Spiegel, 2 Cir., 205 F.2d 771, 774, certiorari denied 1953, 346 U.S. 887, 74 S.Ct. 138, 98 L.Ed. 391. See Maternally Yours, Inc., v. Your Maternity Shop, Inc., 2 Cir., 1956, 234 F.2d 538, 540 footnote 1, 545. Finally, there is no merit in the defendants’ contention that the district court was in error in entering a summary judgment. The depositions and exhibits filed in the district court left no genuine issues of material fact remaining as to the merits of this controversy. The defendants used a colorable imitation of the plaintiff’s collective service mark, resulting in confusion as to the source of origin of the services offered by them. They were also guilty of unfair competition in holding out the Motel Dorma Dell as a member of the plaintiff corporation, by appropriating the name Quality Courts United, Inc. Both secondary meaning and actual deception were shown. See Iowa Farmers Union v. Farmers’ Educational & Coop. Union, 8 Cir., 1957, 247 F.2d 809; Quality Courts v. Quality Courts, D.C.M.D.Pa.1956, 140 F.Supp. 341; National Tuberculosis Ass’n v. Summit County Tuberculosis & Health Ass’n, D.C.N.D.O.1954, 122 F.Supp. 654, 657. In oral argument the defendants relied heavily upon American Auto Ass’n v. Spiegel, 2 Cir., 205 F.2d 771, certiorari denied 1953, 346 U.S. 887, 74 S.Ct. 138, 98 L.Ed. 391. That decision is clearly differentiable. The court’s opinion in that case does not indicate that collective marks or service marks" }, { "docid": "6634276", "title": "", "text": "MATHES, District Judge. This is an action for injunctive relief and damages grounded upon alleged infringement of an unregistered trademark, “Fairy Princess”, used in connection with plaintiff’s product on certain unusual containers designed to hold bubble bath, lotion, cologne, and the like. Plaintiff’s original complaint, invoking the jurisdiction of this Court under §§ 43(a) and 44(f) of the Lanham Act [15 U.S.C.A. §§ 1125(a) and 1126 (f) ], was dismissed for lack of jurisdiction over the subject matter, inasmuch as that Act does not confer upon the Federal courts jurisdiction over “naked” claims for unfair competition, or over claims for infringement of unregistered marks. See: Royal Lace Paper Works, Inc. v. Pest-Guard Products, 5 Cir., 1957, 240 F.2d 814, 815-820; L’Aiglon Apparel, Inc. v. Lana Lobell, Inc., 3 Cir., 1954, 214 F.2d 649, 650-654; American Auto Ass’n v. Spiegel, 2 Cir., 1953, 205 F.2d 771, 773-775; Ramirez & Feraud Chili Co. v. Las Palmas Food Co., D.C.S.D.Cal.1956, 146 F.Supp. 594, 600, 603, affirmed 9 Cir., 1957, 245 F.2d 874, certiorari denied 1958, 355 U.S. 927, 78 S.Ct. 384, 2 L.Ed.2d 357; Haeger Potteries v. Gilner Potteries, D.C.S.D.Cal. 1954, 123 F.Supp. 261, 264-266; cf.: Pagliero v. Wallace China Co., 9 Cir., 1952, 198 F.2d 339, 340-341; Stauffer v. Exley, 9 Cir., 1950, 184 F.2d 962, 964-967; In re Lyndale Farm, 1951, 186 F.2d 723, 725-727, 38 CCPA 825, 829-832. Plaintiff then filed by leave of court an amended complaint for injunctive relief and damages under State law, invoking the jurisdiction of this Court upon the basis of diversity of citizenship, and alleging that the “matter in controversy exceeds the sum or value of $3,000 exclusive of interest and costs”, the action having been commenced prior to the amendment of 28 U.S.C. § 1332 by 72 Stat. 415 (July 25, 1958). Defendant challenged the allegation, that the requisite jurisdictional' amount is in controversy, and moved to dismiss, the action for lack of Federal jurisdiction over the subject matter. Fed.R.Civ.P. 12. (b)(1), 28 U.S.C. It is basic of course that Federal' courts h'ave only that jurisdiction which has been specifically conferred by the" }, { "docid": "22930263", "title": "", "text": "its sales were in fact somewhat greater — as much as 10 bottles per year! While this would make no significant difference, we accept the district court’s finding that Patou “produced and sold in the United States in a very limited amount a perfume called SNOB . . . with total sales from 1951 to 1969 of 72 bottles .... Seventeen bottles were sold to retail stores between 1969 and 1971.” 353 F.Supp. at 292. . Plaintiff has not pressed on appeal the claim in its complaint that it should be declared the owner of the SNOB trademark. It is well settled that foreign use is ineffectual to create trademark rights in the United States, Calimafde, Trademarks and Unfair Competition, § 4.10 (1970). . This court has long held that the Lanham Act does not provide jurisdiction or a substantive remedy for general common law unfair competition claims, American Automobile Ass’n, Inc. v. Spiegel, 205 F.2d 771 (2 Cir. 1953), cert. denied, 346 U.S. 887, 74 S. Ct. 138, 98 L.Ed. 391 (1953); Vanity Fair Hills, Inc. v. T. Eaton Co., Ltd., 234 F.2d 633 (2 Cir. 1956), cert. denied, 352 U.S. 871, 77 S.Ct. 96, 1 L.Ed.2d 76 (1956). The Eighth and Ninth Circuits have read § 44 of the Act, 15 U.S.C. § 1126, very broadly, interpreting it as providing a federal remedy, and through § 39, 15 U.S.C. § 1121, federal jurisdiction in any unfair competition suit, Stauffer v. Exley, 184 F.2d 962 (9 Cir. 1950); Pagliero v. Wallace China Co., 198 F.2d 339 (9 Cir. 1952); Iowa Farmers Union v. Farmers’ Educ. & Coop. Union, 247 F.2d 809 (8 Cir. 1957). The majority of the circuits have followed this circuit’s view, Allen v. Barr, 196 F.2d 159, 161 (6 Cir. 1952); L’Aiglon Apparel, Inc. v. Lana Lobell, Inc., 214 F.2d 649 (3 Cir. 1954); Royal Lace Paper Works, Inc. v. Pest-Guard Prods., Inc., 240 F.2d 814 (5 Cir. 1957); see Developments in the Law — Trade-Marks and Unfair Competition, 68 Harv.L.Bev. 814, 878-81 (1955). Where the Lanham Act is not the source of the right sued" }, { "docid": "12461576", "title": "", "text": "” . “This is an action for using in connection with the goods of defendants symbols and words falsely designating the origin of said goods and falsely representing same by means of symbols and words and causing such goods to enter into commerce, and for palming off defendants’ goods as those of plaintiff’s.” Complaint, Par. 1. . 60 Stat. 440 (1946), 15 U.S.C.A. § 1121: “The district and territorial courts of the United States shall have orig inal jurisdiction, the circuit courts of appeal of the United States and the United States Court of Appeals for the District of Columbia shall have appellate jurisdiction, of all actions arising under this chapter, without regard to the amount in controversy or to diversity or lack of diversity of the citizenship of the parties.” . Defendant characterizes this section as a “controlling statute * * * enacted two years later” than the Lanham Act. Brief for defendant, p. 4. While it is literally true that § 1338(b) was first enacted in 1948 it is essentially the codification of a Supreme Court decision of 1933, Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148. . 2 Cir., 205 E.2d 771, certiorari denied 1953, 346 U.S. 887, 74 S.Ct. 138, 98 L. Ed. 391. Accord, Ross Products, Inc. v. Newman, D.C.S.D.N.Y.1950, 94 F.Supp. 566; Ronson Art Metal Works, Inc. v. Gibson Lighter Mfg. Co., D.C.S.D.N.Y. 1952, 108 F.Supp. 755. . 60 Stat. 441 (1946), 15 U.S.C.A. § 1126. . 9 Cir., 1950, 184 F.2d 962. . See L’Aiglon Apparel, Inc. v. Lana Lobell, Inc., 3 Cir., 1954, 214 F.2d 649; Royal Lace Paper Works, Inc. v. Pest-Guard Products, Inc., 5 Cir., 1957, 240 F.2d 814; City Messenger, of Hollywood, Inc. v. City Bonded Messenger Service, Inc., 7 Cir., 1958, 254 F.2d 531; Iowa Farmers Union v. Farmers’ Educ. and Cooperative Union, 8 Cir., 1957, 247 F. 2d 809. 1 Callmann Unfair Competition and Trade-Marks 78 (Supp.1959) erroneously lists the seventh and eighth circuits as supporting the Stauffer doctrine. There is, however, some support for the Stauffer doctrine in the Court of Customs" }, { "docid": "11375746", "title": "", "text": "the meaning of the statute. Facts showing the plaintiff’s own use of its mark in interstate commerce were clearly set out, as were facts alleging a substantial economic effect upon that use resulting from the defendants’ intrastate infringement. It is apparent therefore that the complaint stated a substantial claim under the federal trade-mark laws, conferring jurisdiction upon the federal court independent of diversity of citizenship. The complaint also stated a claim of unfair competition which was closely related to the trade-mark claim, and of which the federal court therefore also had jurisdiction, irrespective of the diverse citizenship of the parties, 28 U.S.C.A. § 1338(b) ; Iowa Farmers Union v. Farmers’ Educational & Coop. Union, 8 Cir., 1957, 247 F.2d 809, 819; Tele chron, Inc., v. Parissi, 2 Cir., 1952, 197 F.2d 757, 759-761; Schreyer v. Casco Products Corp., 2 Cir., 1951, 190 F.2d 921, 923-924, certiorari denied, 1952, 342 U.S. 913, 72 S.Ct. 360, 96 L.Ed. 683. It follows that the plaintiff’s failure to secure a license from the State of Ohio was not an impediment to the maintenance of this action in the federal court there. That being so, we do not reach the question whether the Lanham Act itself confers independent federal jurisdiction of a claim for unfair competition affecting interstate commerce — a question not argued in this case, and one about which there is disagreement. Compare Pagliero v. Wallace China Co., 9 Cir., 1952, 198 F.2d 339, 341 and Stauffer v. Exley, 9 Cir., 1950, 184 F.2d 962, with Royal Lace Paper Works, Inc., v. Pest-Guard Products, Inc., 5 Cir., 1957, 240 F.2d 814; L’Aiglon Apparel, Inc., v. Lana Lobell, Inc., 3 Cir., 1954, 214 F.2d 649, 652, 654; and American Auto Ass’n v. Spiegel, 2 Cir., 205 F.2d 771, 774, certiorari denied 1953, 346 U.S. 887, 74 S.Ct. 138, 98 L.Ed. 391. See Maternally Yours, Inc., v. Your Maternity Shop, Inc., 2 Cir., 1956, 234 F.2d 538, 540 footnote 1, 545. Finally, there is no merit in the defendants’ contention that the district court was in error in entering a summary judgment. The depositions and" }, { "docid": "6063463", "title": "", "text": "of genuine competition by destroying the buyer’s opportunity to judge fairly between rival commodities by introducing such factors as false descriptive trademarks which are capable of misinforming as to the true qualities of the competitive products.” Although the language of the Gold Seal court would seem to permit the interpretation suggested by appellants, it seems very clearly the other way when read in the light of Judge Frank’s concurring opinion in Smidler. . 214 F.2d 649, 651 (3d Cir. 1954). . Gold Seal Co. v. Weeks, 129 F.Supp. 928 (D.D.C.1955), aff’d sub nom. S. C. Johnson & Son, Inc. v. Gold Seal Co., 97 U.S.App.D.C. 282, 230 F.2d 832 (D.C.Cir.), cert. denied, 352 U.C. 829, 77 S.Ct. 41, 1 L.Ed.2d 50 (1956); Yameta Co. v. Capitol Records, Inc., 279 F.Supp. 582, 586 (S.D.N.Y.1968). . Appellants also rely on the famous passage in Chief Judge Clark’s concurring opinion in Maternally Yours v. Your Maternity Shop, 234 F.2d 538, 546 (2d Cir. 1956), that “the bar has not yet realized the potential impact of this statutory provision.” We construe that statement in context to refer to the federal courts’ reluctance at that time to broaden the substantive scope of § 43 (a), as that section represented in Chief Judge Clark’s view an opportunity and an invitation to create a federal law of unfair competition, which embraces far more than mere “passing off,” the unduly narrow application of the provision prevalent at that time. See 234 F.2d at 546-547. . 214 F.2d at 654. The Lanham Act originally included a specific section which read: “All acts of unfair competition in commerce are declared unlawful.” This language was later dropped because it was regarded as “dangerously broad.” Derenberg at 1063. This court has rejected the view that the Lanham Act, through § 44 (i), 15 U.S.C. § 1126 (i), creates independent federal jurisdiction over the entire field of unfair competition. See American Auto. Ass’n v. Spiegel, 205 F.2d 771, 774 (2d Cir.), cert. denied, 346 U.S. 887, 74 S.Ct. 138, 98 L.Ed. 391 (1953); approved, Derenberg at 1061; compare Stauffer v. Exley, 184 F.2d" }, { "docid": "13800469", "title": "", "text": "3 Cir., 1954, 214 F.2d 649; American Auto Ass’n v. Spiegel, 2 Cir., 1952, 205 F.2d 771; cf. Pagliero v. Wallace China Co., supra, 198 F.2d 339; Stauffer v. Exley, supra, 184 F.2d 962; see: Panaview Door & Window Co. v. Van Ness, D.C.S. D.Cal.1954, 124 F.Supp. 329; Haeger Potteries v. Gilner, D.C.S.D.Cal.1954,123 F.Supp. 261. Hence it is that, for jurisdiction over the alleged acts of unfair competition not involving the use in “commerce” of the registered trade-mark or the trade name, resort must be had to the pendent-jurisdiction statute which plaintiff here invokes. The pendent-jurisdiction statute, 28 U.S.C. § 1338(b), necessarily presupposes a claim of unfair competition .arising otherwise than “under the copyright, patent or trade-mark laws” since, unless so interpreted, § 1338(b) would confer no jurisdiction additional to that already conferred by § 1338(a) and so would be mere surplusage. See: L’Aiglon Apparel, Inc. v. Lana Lobell, Inc., supra, 214 F.2d at page 649; Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 1938, 305 U.S. 315, 324-325, 59 S.Ct. 191, 83 L.Ed. 195; Hurn v. Oursler, supra, 289 U.S. at pages 240-243, 248, 53 S.Ct. 586; Stark Bros. Nurseries & Orchards Co. v. Stark, 1921, 255 U.S. 50, 41 S.Ct. 221, 65 L.Ed. 496; Musher Foundation v. Alba Trading Co., 2 Cir., 127 F.2d 9, certiorari denied, 1942, 317 U.S. 641, 63 S.Ct. 33, 87 L.Ed. 517; Pure Oil Co. v. Puritan Oil Co., 2 Cir., 1942, 127 F.2d 6; Bulova Watch Co. v. Stolzberg, D.C.Mass.1947, 69 F.Supp. 543; Reviser’s Note to § 1338(b), 28 U.S.C.A. In a case where diversity of citizenship exists, pendent jurisdiction under 28 U.S.C. § 1338(b) adds nothing to, and fully coincides with diversity jurisdiction under 28 U.S.C. § 1332, but for the jurisdictional-amount requirement of § 1332 which is entirely absent from both § 1338(b) and the Lanham Act. 15 U.S. C.A. § 1121; see: Fashion Originators’ Guild v. Federal Trade Commission, 1941, 312 U.S. 457, 468, 61 S.Ct. 703, 85 L.Ed. 949; Cities Service Oil Co. v. Dunlap, 1939, 308 U.S. 208, 60 S.Ct. 201, 84 L.Ed. 196; Ruhlin v. N." }, { "docid": "19719865", "title": "", "text": "competition—not limited to trademark infringement cases—for certain foreign nationals at 15 U.S.C. § 1126(b) and (h) which is extended to protect United States citizens in subsection (i) of that section. Magna Pictures Corp. v. Paramount Pictures Corp., 265 F.Supp. 144 (C.D.Cal.1967) holds that such a cause of action does indeed exist, following Stauffer et al. v. Exley, 184 F.2d 962 (9th Cir. 1950). See also Neal v. Thomas Organ Co., 325 F.2d 978 (9th Cir. 1963), cert, denied, 379 U.S. 828, 85 S.Ct. 55, 13 L.Ed.2d 37 (1964). Other circuits, including the Seventh Circuit, differ: City Messenger of Hollywood v. City Bonded Messenger Service, 254 F.2d 531 (7th Cir. 1958), cert, denied, 358 U.S. 827, 79 S.Ct. 45, 3 L.Ed.2d 66 (1958); Royal Lace Paper Works, Inc. v. Pest-Guard Products, Inc., 240 F.2d 814 (5th Cir. 1957); L’Aiglon Apparel, Inc. v. Lana Lobell, Inc., 214 F.2d 649 (3d Cir. 1954); American Auto Association v. Spiegel, 205 F.2d 771 (2d Cir. 1953), cert, denied, 346 U.S. 887, 74 S.Ct. 138, 98 L.Ed. 391 (1953). Since we hold Regal’s counterclaim to be within the Court’s ancillary jurisdiction, we need not reach the question of whether independent federal question jurisdiction is supported by this section. . The Supreme Court recently cited the application of the logical relationship test under the current Rule 13 approvingly: “If a counterclaim is compulsory, the federal court will have ancillary jurisdiction over it even though ordinarily it would be a matter for a state court, e. g., Great Lakes Rubber Corp. v. Herbert Cooper Co. . Under Rule 13(a)’s predecessor this court held that ‘transaction’ is a word of flexible meaning which may comprehend a series of occurrences if they have a logical connection, Moore v. New York Cotton Exchange . . and this is the rule generally followed by the lower courts in construing Rule 13(a).” Baker v. Gold Seal Liquors, Inc., 417 U.S. 467, 469 n.l, 94 S.Ct. 2504, 2506, 41 L.Ed.2d 243 (1974). . The courts have generally construed the transaction or occurrence requirement liberally. See Columbia Plaza Corp. v. Security National Bank, 173 U.S.App.D.C." }, { "docid": "17397309", "title": "", "text": "brokerage of produce and livestock, the sale ■of insurance, and the servicing of farm equipment, and from in any way, directly or indirectly attempting to compete with the plaintiff in its use of said trade marks. It Is Further Ordered that Judgment be entered against the said defendants for the costs of this action. Remainder of opinion deleted on consideration of Petition for Rehearing, see 247 F.2d 819. col. 1. On Consideration of Petition for Rehearing. In the brief of appellants on their petition for rehearing they contend that this court has held erroneously that the Lanham Act conferred original jurisdiction upon District Courts in actions for unfair competition and they argue that the decision of this court is in conflict with the Second Circuit in American Auto Association v. Spiegel, 205 F.2d 771, the Third Circuit in L’AiglonApparel v. Lana, Lobell, Inc., 214 F.2d 649 and the Fifth Circuit in Royal Lace Paper Works, Inc., v. Pest-Guard Products, Inc., 240 F.2d 814. To avoid possibility of such construction of our opinion, it is ordered that the paragraphs of the slip opinion herein of August 5, 1957, on page 18 thereof, beginning on the sixth line [247 F.2d 818, col. 2, line 29 to end of opinion] be deleted and that the following be inserted in lieu of the deleted matter: Our holding in this case that the District Court had jurisdiction of the case under the Lanham Act and Title 28 United States Code, § 1338(a) and (b) is based upon the fact that the unfair competition engaged in by the defendants as rightly found by the District Court, was substantially related to the proven infringement by defendants of the plaintiff’s trademarks, which were duly registered under the Lanham Act. Our decision is in accord with those of the Second, Third and Fifth Circuits in American Auto Association v. Spiegel, 2 Cir., 205 F.2d 771; L’AiglonApparel v. Lana, Lobell, Inc., 3 Cir., 214 F.2d 649 and Royal Lace Paper Works, Inc., v. Pest-Guard Products, Inc., 5 Cir., 240 F.2d 814. Defendants’ wrongful use of plaintiff’s registered trademarks in its" }, { "docid": "23281520", "title": "", "text": "a particular organization and distinguishes them from goods originating from others. Compare 15 U.S.C. § 1127, r 13 with 15 U.S.C. § 1127, 10. See J. McCarthy, Trademarks & Unfair Competition § 4:4 (1973). The distinction has no import in this case and we have used the terms interchangeably. . .The parties have not raised this issue, but we must, sua sponte, inquire into the precise nature of our jurisdiction. Louisville & Nashville R.R. Co. v. Motley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908). . By the phrase “common law” we mean rules of decision which do not expressly derive from a constitutional or statutory source, as distinguished from judge-made rules formulated in the course of constitutional or statutory interpretation. See P. Bator, P. Mishkin, D. Shapiro, H. Wechsler, The Federal Courts and the Federal System, 769-70 (2d ed. 1973). . In Stauffer v. Exley, 184 F.2d 962 (9th Cir. 1950), this court stated that section 44 of the Lanham Act, 15 U.S.C. § 1126, created a federal protection against unfair competition. See also Pagliero v. Wallace China Co., 198 F.2d 339 (9th Cir. 1952). The Stauffer language intimates the existence of federal law extending well beyond the categories of trademark infringement and false designation of the origin of goods. Several commentators have criticized the Stauffer language, J. McCarthy, Trademarks & Unfair Competition § 32:2E (1973); Developments in the Law-Trademarks and Unfair Competition, 68 Harv.L.Rev. 814, 878-81 (1955), and most circuits have rejected the idea of such a broad federal protection. See, e. g., Royal Lace Paper Works, Inc. v. Pest-Guard Prods., Inc., 240 F.2d 814, 816-20 (5th Cir. 1957); L’Aiglon Apparel, Inc. v. Lana Lobell, Inc., 214 F.2d 649, 651-54 (3d Cir. 1954); American Auto. Ass’n, Inc. v. Spiegel, 205 F.2d 771, 774-75 (2d Cir.), cert. denied, 346 U.S. 887, 74 S.Ct. 138, 98 L.Ed. 391 (1953). We do not read Stauffer so broadly. The case did not involve the whole range of business torts that are generally thought to be treated under state law, but rather involved the narrower tort of falsely designating" }, { "docid": "22930264", "title": "", "text": "Hills, Inc. v. T. Eaton Co., Ltd., 234 F.2d 633 (2 Cir. 1956), cert. denied, 352 U.S. 871, 77 S.Ct. 96, 1 L.Ed.2d 76 (1956). The Eighth and Ninth Circuits have read § 44 of the Act, 15 U.S.C. § 1126, very broadly, interpreting it as providing a federal remedy, and through § 39, 15 U.S.C. § 1121, federal jurisdiction in any unfair competition suit, Stauffer v. Exley, 184 F.2d 962 (9 Cir. 1950); Pagliero v. Wallace China Co., 198 F.2d 339 (9 Cir. 1952); Iowa Farmers Union v. Farmers’ Educ. & Coop. Union, 247 F.2d 809 (8 Cir. 1957). The majority of the circuits have followed this circuit’s view, Allen v. Barr, 196 F.2d 159, 161 (6 Cir. 1952); L’Aiglon Apparel, Inc. v. Lana Lobell, Inc., 214 F.2d 649 (3 Cir. 1954); Royal Lace Paper Works, Inc. v. Pest-Guard Prods., Inc., 240 F.2d 814 (5 Cir. 1957); see Developments in the Law — Trade-Marks and Unfair Competition, 68 Harv.L.Bev. 814, 878-81 (1955). Where the Lanham Act is not the source of the right sued upon, state law applies. Artype, Inc. v. Zappulla, 228 F.2d 695 (2 Cir. 1956); Maternally Yours, Inc. v. Your Maternity Shop, Inc., 234 F.2d 538, 540-541 n. 1 (2 Cir. 1956). In this case, however, the choice of law presents no real problems, since trademark use is accepted as a general common law requirement, with no discernible modulations from jurisdiction to jurisdiction. Federal registration similarly does not alter the basic common law requirement of use. The Lanham Act does not create the trademark right; it only recognizes the right acquired through use, Radio Shack Corp. v. Radio Shack, Inc., 180 F.2d 200 (7 Cir. 1950); Vandenburgh, Trademark Law & Procedure § 2.10 (2d ed. 1968). . In its pretrial memorandum plaintiff attempted to bring its damages claim under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), on the ground that defendant had “falsely represented that it is possessed of the right to prevent the importation into the United States of the plaintiff’s perfumes.” That effort seems wide of the mark. Section 43(a) is" }, { "docid": "15905589", "title": "", "text": "to the contention of appellants, that, plaintiff and Mott being citizens of the same state, the diversity of citizenship requisite for jurisdiction upon that ground is lacking and the judgment of reversal should direct the dismissal of the cause for want of federal jurisdiction, and to appellee’s counter contention which, though! apparently not made below, is now put-forward strongly in its brief and argument, that, under the Lanham Act, 15 U.S.C.A. §§ 1051 to 1127, particularly Sections 1121 and 1126, and Sections 1337 and 1338(a) of Title 28, jurisdic tion of a naked claim for unfair competition exists independently both of diversity, and “of joinder with a substantial and related claim” under the rule announced in Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, and codified in Section 1338(b) 28 U.S.C. Urging upon us, as correctly decided cases from the Ninth Circuit, Stauffer v. Exley, 184 F.2d 962, Pagliero v. Wallace China Co., 198 F.2d 339, and Ross Whitney Corp. v. Smith Kline, 207 F.2d 193, so holding and approved obiter in In re Lyndale Farm, 186 F.2d 723, at page 726, 38 C.C.Pa., Patents, 825, appellee strongly argues that we should follow their teachings and hold that, under the pleadings in this case, the court had jurisdiction of the subject matter of the suit. Appellants, in their turn, rejecting these decisions as unsound guides and putting their trust in American Auto Association v. Spiegel, 2 Cir., 205 F.2d 771, L’Aiglon v. Lana Lobell, Inc., 3 Cir., 214 F.2d 649, and the numerous other cases they cite, vigorously insist that the court was without jurisdiction. It is appellee’s claim, as stated above, that the Lanham Act, supra, created an independent federal cause of action for unfair competition and for infringement of unregistered trade marks. As we understand it, it bases this view on the provision in Sec. 1121 of the Act, that the district courts shall have original, and the appellate courts appellate “jurisdiction, of all actions arising under this chapter, without regard to the amount in controversy or to diversity or lack of diversity of" }, { "docid": "19719864", "title": "", "text": "Cop-perweld and became Regal. The agreement of sale between Copperweld and LSI is alleged in the counterclaim to have contained a non-competition covenant which, claims Regal, gave rise to the fiduciary duty Grohne is said to have breached. In addition, it is claimed that, in the context of the acquisition, Grohne represented to Copperweld that he would either accept Copperweld’s offer that he stay on as chief executive officer of Regal or would work for LSI, while all the while he was making preparations to incorporate Independence and to go into the structural steel tubing business on his own. Regal also claims that Grohne acquired confidential information of Copperweld’s through these representations during a visit to Copperweld’s executive offices to discuss his future employment. . There appears to be a conflict among the circuits as to whether there exists a federally created cause of action under which general unfair competition claims may be brought. The Lanham Act, 15 U.S.C. §§ 1051-1127, dealing with trademarks generally, seems to create a federal cause of action for unfair competition—not limited to trademark infringement cases—for certain foreign nationals at 15 U.S.C. § 1126(b) and (h) which is extended to protect United States citizens in subsection (i) of that section. Magna Pictures Corp. v. Paramount Pictures Corp., 265 F.Supp. 144 (C.D.Cal.1967) holds that such a cause of action does indeed exist, following Stauffer et al. v. Exley, 184 F.2d 962 (9th Cir. 1950). See also Neal v. Thomas Organ Co., 325 F.2d 978 (9th Cir. 1963), cert, denied, 379 U.S. 828, 85 S.Ct. 55, 13 L.Ed.2d 37 (1964). Other circuits, including the Seventh Circuit, differ: City Messenger of Hollywood v. City Bonded Messenger Service, 254 F.2d 531 (7th Cir. 1958), cert, denied, 358 U.S. 827, 79 S.Ct. 45, 3 L.Ed.2d 66 (1958); Royal Lace Paper Works, Inc. v. Pest-Guard Products, Inc., 240 F.2d 814 (5th Cir. 1957); L’Aiglon Apparel, Inc. v. Lana Lobell, Inc., 214 F.2d 649 (3d Cir. 1954); American Auto Association v. Spiegel, 205 F.2d 771 (2d Cir. 1953), cert, denied, 346 U.S. 887, 74 S.Ct. 138, 98 L.Ed. 391 (1953). Since we" }, { "docid": "21943796", "title": "", "text": "Derenberg, Federal Unfair Competition Law at the End of the First Decade of the Lanham Act: Prologue or Epilogue? 32 N.Y.U.L.Rev. 1029, 1032-39 (1957); Callman, False Advertising as a Competitive Tort, 48 Colum.L.Rev. 876 (1948). This is the crux to the holding in L’Aiglon Apparel, Inc. v. Lana Lobell, Inc., 214 F.2d 649, 651 (3d Cir. 1954) which was cited with approval by the Court in Bernard Food Industries, Inc. v. Dietene Company, supra, at 1284. Perhaps the statement of Judge Youngdahl in Gold Seal Company v. Weeks, 129 F.Supp. 928 (D.C.D.C. 1955) aff’d per curiam, S. C. Johnson & Son, Inc. v. Gold Seal Co., 97 U.S.App.D.C. 282, 230 F.2d 832 (1956) cert. denied, 352 U.S. 829, 77 S.Ct. 41, 1 L.Ed.2d 50 (1956) best reflects the congressional intent behind Section 43(a): “In this respect Section 43(a) does create a federal statutory tort, sui generis. ... It means that wrongful diversion of trade resulting from false description of one’s products invades that interest which an honest competitor has in fair business dealings — an interest which the courts should and will protect whether it be called that of ‘property’, or ‘quasi-property’ or something else. It represents, within this area, an affirmative code of business ethics whose standards can be maintained by anyone who is or may be damaged by a violation of this segment of the code. In effect it says: you may not conduct your business in a way that unnecessarily or unfairly interferes with and injures that of another; you may not destroy the basis of genuine competition by destroying the buyer’s opportunity to judge fairly between rival commodities by introducing such factors as falsely descriptive trademarks which are ... of the competitive product.” 129 F.Supp. at 940. Accordingly, the General Pool decision is not dispositive of the issue presented here. Defendant also relies heavily on the case of Samson Crane Co. v. Union National Sales, Inc., 87 F.Supp. 218 (D.Mass.1949), aff’d per curiam, 180 F.2d 896 (1st Cir. 1950) and quotes extensively from the opinion of the district court. Aside from the fact that the Samson" }, { "docid": "13800468", "title": "", "text": "commerce of a foreign country, the Act even provides that: “No article of imported merchandise which shall copy or simulate the name of * * * any domestic * * * manufacturer, or trader, * * * or which shall copy or simulate a trade-mark registered in accordance with the provisions of this chapter * * * be admitted to entry at any customhouse of the United States * * * ” 15 U.S.C.A. § 1124'. It is borne in mind that although the Lanham Act gives a federal cause of action for infringement of and for unfair competition in the use of registered “marks”, 15 U.S.C.A. §§ 1126(h), 1114-1120, and provides like remedies for unfair competition in the use of “trade names” or “commercial names”, id. § 1127, “whether or not they form parts of marks”, id. § 1126(g), and regardless ■of whether such names be anywhere registered, id. § 1126 (a, g), no federal cause of action is given by the Act for ¡unfair competition generally. L’Aiglon Apparel, Inc., v. Lana Lobell, Inc., 3 Cir., 1954, 214 F.2d 649; American Auto Ass’n v. Spiegel, 2 Cir., 1952, 205 F.2d 771; cf. Pagliero v. Wallace China Co., supra, 198 F.2d 339; Stauffer v. Exley, supra, 184 F.2d 962; see: Panaview Door & Window Co. v. Van Ness, D.C.S. D.Cal.1954, 124 F.Supp. 329; Haeger Potteries v. Gilner, D.C.S.D.Cal.1954,123 F.Supp. 261. Hence it is that, for jurisdiction over the alleged acts of unfair competition not involving the use in “commerce” of the registered trade-mark or the trade name, resort must be had to the pendent-jurisdiction statute which plaintiff here invokes. The pendent-jurisdiction statute, 28 U.S.C. § 1338(b), necessarily presupposes a claim of unfair competition .arising otherwise than “under the copyright, patent or trade-mark laws” since, unless so interpreted, § 1338(b) would confer no jurisdiction additional to that already conferred by § 1338(a) and so would be mere surplusage. See: L’Aiglon Apparel, Inc. v. Lana Lobell, Inc., supra, 214 F.2d at page 649; Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 1938, 305 U.S. 315, 324-325, 59 S.Ct. 191, 83 L.Ed. 195;" }, { "docid": "17298759", "title": "", "text": "upon Royal Lace Paper Works, Inc. v. Pest-Guard Prods., Inc., 240 F.2d 814 (5th Cir. 1957); American Auto. Ass’n v. Spiegel, 205 F.2d 771 (2d Cir.), cert. denied, 346 U.S. 887, 74 S.Ct. 138, 98 L. Ed. 391 (1953); Kaz Mfg. Co., Inc. v. Chesebrough-Pond’s, Inc., 211 F.Supp. 815 (S.D.N.Y.1962), aff’d, 317 F.2d 679 (2d Cir. 1963); Ross Prods., Inc. v. Newman, 94 F.Supp. 566 (S.D.N.Y.1950). With the exception of the Kaz case, supra, those decisions are inapposite as. they are concerned with Section 44 of the Lanham Act, 60 Stat. 441 (1946), 15 U.S.C. § 1126 (1964) and not Section 43 (a) of the Lanham Act which is the relevant section in the case now before us. Viewing the Kaz case, supra, in the light most favorable to the defendant, the most that it can be said to suggest in footnote 23 is that Section 43(a) of the Lanham Act does not create an independent basis for subject matter jurisdiction over a claim predicated upon the publication of defamatory matter which allegedly injured the plaintiff’s business. On the other hand, it has been held that Section 43(a), the section upon which plaintiff’s complaint is based, is the result of a Congressional intent to fashion a new federal remedy against a particular kind of unfair competition— namely, the use of a false designation of origin. American Rolex Watch Corp. v. Jack Laufer & Jan Voort, Inc., 176 F. Supp. 858, 861 (E.D.N.Y.1959); Mutation Mink Breeders Ass’n v. Lou Nierenberg Corp., 23 F.R.D. 155, 161 (S.D.N.Y. 1959). See Callman, False Advertising As A Competitive Tort, 48 Colum.L.Rev. 876, 886 (1948). The court finds that it does have subject matter jurisdiction over the unfair competition claim presented here by virtue of Sections 43(a) and 39 of the Lanham Act. See, e. g., Federal-Mogul-Bower Bearings, Inc. v. Azoff, 313 F.2d 405 (6th Cir. 1963); Maternally Yours, Inc. v. Your Maternity Shop, Inc., 234 F. 2d 538, 540-541 n. 1, 546 (2d Cir. 1956); L’aiglon Apparel, Inc. v. Lana Lobell, Inc., 214 F.2d 649 (3d Cir. 1954); Eastman Kodak Co. v. Royal-Pioneer Paper Box" }, { "docid": "12461577", "title": "", "text": "a Supreme Court decision of 1933, Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148. . 2 Cir., 205 E.2d 771, certiorari denied 1953, 346 U.S. 887, 74 S.Ct. 138, 98 L. Ed. 391. Accord, Ross Products, Inc. v. Newman, D.C.S.D.N.Y.1950, 94 F.Supp. 566; Ronson Art Metal Works, Inc. v. Gibson Lighter Mfg. Co., D.C.S.D.N.Y. 1952, 108 F.Supp. 755. . 60 Stat. 441 (1946), 15 U.S.C.A. § 1126. . 9 Cir., 1950, 184 F.2d 962. . See L’Aiglon Apparel, Inc. v. Lana Lobell, Inc., 3 Cir., 1954, 214 F.2d 649; Royal Lace Paper Works, Inc. v. Pest-Guard Products, Inc., 5 Cir., 1957, 240 F.2d 814; City Messenger, of Hollywood, Inc. v. City Bonded Messenger Service, Inc., 7 Cir., 1958, 254 F.2d 531; Iowa Farmers Union v. Farmers’ Educ. and Cooperative Union, 8 Cir., 1957, 247 F. 2d 809. 1 Callmann Unfair Competition and Trade-Marks 78 (Supp.1959) erroneously lists the seventh and eighth circuits as supporting the Stauffer doctrine. There is, however, some support for the Stauffer doctrine in the Court of Customs and Patent Appeals. See In re Lyndale Farms, 1951, 186 F.2d 723, 38 CCPA 825. . American Automobile Ass’n v. Spiegel, 205 F.2d at page 774. . See Derenberg, Federal Unfair Competition at the end df the First Decade of the Lanham Act: Prologue or Epilogue?, 32 N.Y.U.L.Rev. 1029, 1032-39 (1957). . 3 Cir., 1954, 214 F.2d 649. . 214 F.2d at page 651. See also Gold Seal Co. v. Weeks, D.C.D.C.1955, 129 F.Supp. 928, affirmed sub nom., S. C. Johnson & Son, Inc. v. Gold Seal Co., 97 U.S.App.D.C. 282, 230 F.2d 832, cer-tiorari denied 1956, 352 U.S. 829, 77 S.Ct. 41, 1 L.Ed.2d 50; “In this respect Section 43(a) does create a federal statutory tort, sui generis.” 129 F.Supp. at page 940. . While the language of the court in Joshua Meier Co. v. Albany Novelty Mfg. Co., 2 Cir., 1956, 236 F.2d 144, 147, may be taken to anticipate the conclusion reached here, federal jurisdiction there could have been based on diversity of citizenship or on 28 U.S.C. § 1338. . Mutation" }, { "docid": "23281521", "title": "", "text": "unfair competition. See also Pagliero v. Wallace China Co., 198 F.2d 339 (9th Cir. 1952). The Stauffer language intimates the existence of federal law extending well beyond the categories of trademark infringement and false designation of the origin of goods. Several commentators have criticized the Stauffer language, J. McCarthy, Trademarks & Unfair Competition § 32:2E (1973); Developments in the Law-Trademarks and Unfair Competition, 68 Harv.L.Rev. 814, 878-81 (1955), and most circuits have rejected the idea of such a broad federal protection. See, e. g., Royal Lace Paper Works, Inc. v. Pest-Guard Prods., Inc., 240 F.2d 814, 816-20 (5th Cir. 1957); L’Aiglon Apparel, Inc. v. Lana Lobell, Inc., 214 F.2d 649, 651-54 (3d Cir. 1954); American Auto. Ass’n, Inc. v. Spiegel, 205 F.2d 771, 774-75 (2d Cir.), cert. denied, 346 U.S. 887, 74 S.Ct. 138, 98 L.Ed. 391 (1953). We do not read Stauffer so broadly. The case did not involve the whole range of business torts that are generally thought to be treated under state law, but rather involved the narrower tort of falsely designating the origin of goods. Other circuits have applied 15 U.S.C. § 1125 in such situations. See Boston Professional Hockey Ass’n v. Dallas Cap & Emblem Mfg., Inc., 510 F.2d 1004, 1010 (5th Cir.), cert. denied, 423 U.S. 868, 96 S.Ct. 132, 46 L.Ed.2d 98 (1975). Moreover, some of the language in Stauffer seems to limit its applicability to false designations of origin: “[T]he protection granted by the Lanham Act against unfair competition ... is limited ... to ‘the remedies provided in this chapter for infringement of marks ....’” 184 F.2d at 965. This court has previously suggested that this language makes the Stauffer opinion “self-limiting.” Kemart Corp. v. Printing Arts Research Laboratories, Inc., 269 F.2d 375, 389-90 n.9 (9th Cir. 1959). See also Wells Fargo & Co. v. Wells Fargo Express Co., 358 F.Supp. 1065, 1081-84 (D.Nev.1973), vacated on other grounds, 556 F.2d 406 (9th Cir. 1977). In any event, Job’s Daughters’ only claim is grounded in false designation of origin. That claim clearly is actionable under section 1125(a), as interpreted in New West Corp." }, { "docid": "13118047", "title": "", "text": "a federal cause of action for unfair competition, but the present law still seems to follow Stauffer v. Exley, as shown by the case of Volkswagenwerk Aktiengesellschaft v. Church, 256 F.Supp. 626 (D.C.S.D.Cal.1966), affirmed 411 F.2d 350 (9 Cir.): “Apparently the law of the Ninth Circuit is that the Lanham Act, and specifically 15 U.S.C. § 1126(h) provides a federal cause of action for unfair competition generally (if such competition affects interstate commerce), and independent of any related claim under the copyright, patent or trademark laws; the cases of Stauffer v. Exley (9 Cir. 1950), 184 F.2d 962, and Pagliero v. Wallace China Co., (9 Cir. 1952), 198 F.2d 339, are to this effect, although this conflicts with the Second and Third Circuits: American Auto Association v. Spiegel (2 Cir. 1953), 205 F.2d 771, cert. denied 346 U.S. 887, 74 S.Ct. 138, 98 L.Ed. 391, and L’Aiglon Apparel v. Lana, Lobell (3 Cir. 1954), 214 F.2d 649. “Two district court judges in California have declined to follow their court of appeals in the Stauffer and Pagliero cases, claiming that the statements in those cases are dicta. In the Ramirez ease, in which the opinion of Judge Mathes was adopted in its entirety by the Court of Appeals for the Ninth Circuit, Judge Mathes says flatly: ‘ * * * no federal cause of action is given by the [Lanham] Act for unfair competition generally.’ 146 F.Supp. 594 at 603. That holding was followed in Panaview Door and Window Co. v. Van Ness (S.D.Cal.1954), 124 F.Supp. 329. “But the latest Ninth Circuit cases ignore the Ramirez and Panaview cases, and reiterate the position taken in Stauffer and Pagliero: ‘In holding that under the Lanham Act (15 U.S.C.A. § 1126) there had been created a substantive federal law of unfair competition wherever interstate commerce was involved, the Ninth Circuit differs from other circuits. Stauffer v. Exley, 9 Cir. 1950, 184 F.2d 962; Pagliero v. Wallace China Co., 9 Cir. 1952, 198 F.2d 339; * * * ’ ” The law becomes even murkier when the focus is upon the question of whether" }, { "docid": "12461578", "title": "", "text": "and Patent Appeals. See In re Lyndale Farms, 1951, 186 F.2d 723, 38 CCPA 825. . American Automobile Ass’n v. Spiegel, 205 F.2d at page 774. . See Derenberg, Federal Unfair Competition at the end df the First Decade of the Lanham Act: Prologue or Epilogue?, 32 N.Y.U.L.Rev. 1029, 1032-39 (1957). . 3 Cir., 1954, 214 F.2d 649. . 214 F.2d at page 651. See also Gold Seal Co. v. Weeks, D.C.D.C.1955, 129 F.Supp. 928, affirmed sub nom., S. C. Johnson & Son, Inc. v. Gold Seal Co., 97 U.S.App.D.C. 282, 230 F.2d 832, cer-tiorari denied 1956, 352 U.S. 829, 77 S.Ct. 41, 1 L.Ed.2d 50; “In this respect Section 43(a) does create a federal statutory tort, sui generis.” 129 F.Supp. at page 940. . While the language of the court in Joshua Meier Co. v. Albany Novelty Mfg. Co., 2 Cir., 1956, 236 F.2d 144, 147, may be taken to anticipate the conclusion reached here, federal jurisdiction there could have been based on diversity of citizenship or on 28 U.S.C. § 1338. . Mutation Mink Breeders Ass’n v. Lon Nierenberg Corp., D.C.S.D.N.Y.1959, 23 F.B.D. 155; Catalina, Inc. v. Gem Swimwear, Inc., D.C.S.D.N.Y.1953, 162 F. Supp. 911. In passing it may be noted that Judge Edelsteiu who decided the Catalina case also decided the Bonson case, supra, note 5, relied upon so heavily by defendant. In Morris Struhl, Inc. v. Belaxor Cushion Corp., D.C.S.D.N.Y.1958, 161 F. Supp. 826, the court recognized that a problem of jurisdiction exists but did not feel required to solve it on the particular motion before the court. Similarly the cases of Fluidless Non-Tact Lenses, Inc. v. Klear Vision Contact Lens Specialists, Inc., D.C.S.D.N.Y.1958, 158 F. Supp. 145, and M. & D. Simon Co. v. R. H. Macy & Co., D.C.S.D.N.Y.1957, 152 F.Supp. 212, do not contradict the holding in L’Aiglon. These cases merely hold that as a matter of pleading the complaint must be framed in terms of 43(a) to warrant removal to a federal court under the circumstances. . See, e. g., 1 Callmann, op. cit. supra note 8, at 318; Derenberg, supra note" } ]

[ { "docid": "6170565", "title": "", "text": "not show that multiple government officials are complicit in order to be entitled to relief. “Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and there after breach his or her legal responsibility to intervene to prevent such activity.” Id., § 1208.18(a)(7) (emphasis added). .That Mexican police participate as well as acquiesce in the torture of the petitioner is evidenced by the torture that police have already inflicted on him at Jose’s direction, an atrocity consistent with the widespread understanding that many Mexican police are allied with the big drug cartels, such as the Zetas. Nor is the issue, as the immigration judge opined, whether the police officers who tortured the petitioner “were rogue officers individually compensated by Jose to engage in isolated incidents of retaliatory brutality, rather than evidence of a broader pattern of governmental acquiescence in torture.” It is irrelevant whether the police were rogue (in the sense of not serving the interests of the Mexican government) or not. The petitioner did not have to show that the entire Mexican government is complicit in the misconduct of individual police officers. The immigration judge further compounded her errors by saying that because “the Mexican government has made efforts to prevent violence by drug cartels,” it would “not participate in or acquiesce to torture of the” petitioner. Again that is not the issue. That the Mexican government may be trying, though apparently without much success, to prevent police from torturing citizens at the behest of drug gangs is irrelevant to this case. N.L.A. v. Holder, 744 F.3d 425, 440-42 (7th Cir.2014). See also Madrigal v. Holder, 716 F.3d 499, 509-10 (9th Cir.2013), a case involving the Zetas cartel and concluding, as do we, that “if public officials at the state and local level in Mexico would acquiesce in any torture [that the petitioner] is likely to suffer, this satisfies CAT’s requirement that a public official acquiesce in the torture, even if the federal government in Mexico would not similarly acquiesce.” For a sound analysis, we go to Avendano-Hernandez" } ]

[ { "docid": "22432588", "title": "", "text": "Ashcroft, 378 F.3d 694, 697 (7th Cir.2004) (Posner, J.). B. ACQUIESCENCE OF A PUBLIC OFFICIAL Without analysis, the BIA concluded that any torture Tapia Madrigal is likely to suffer would not be with the consent or acquiescence of a public official. The BIA failed to “state with sufficient particularity and clarity the reasons for” this decision and so does not “provide an adequate basis for this court to conduct its review.” Castillo v. INS, 951 F.2d 1117, 1121 (9th Cir.1991). The inquiry about whether Mexican officials would acquiesce in torture is related to the inquiry in the asylum context of whether the Mexican government is not just willing but also able to control Los Zetas, at least insofar as it would affect Tapia Madrigal. Both require examining the efficacy of the government’s efforts to stop the drug captéis’- violence, and both aré affected by the degree of corruption that exists in Mexico’s government. Remand is therefore also appropriate for the BIA to consider whether a Mexican public official is likely to acquiesce in any torture Tapia Madrigal might suffer. “Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” 8 C.F.R. § 208.18(a)(7). Although the public official must have “awareness” of the torturous activity, he need not have actual knowledge of the specific incident of torture. See Li Chen Zheng v. Ashcroft, 332 F.3d 1186, 1194-96 (9th Cir.2003). Acquiescence also does not require that the public official approve of the torture, even implicitly. See id. It is sufficient that the public official be aware that torture of the sort feared by the applicant occurs and remain willfully blind to it. See id.; Aguilar-Ramos, 594 F.3d at 705-06. Importantly, an applicant for CAT relief need not show that the entire foreign government would consent to' or acquiesce in his torture. He need show only that “a public official” would so acquiesce. 8 C.F.R. § 208.18(a)(1); see Li Chen Zheng, 332 F.3d at 1189-96 (remanding a CAT" }, { "docid": "22045253", "title": "", "text": "characteristic.”). Rather, he/ she must establish a likelihood of being subjected to torturous acts inflicted “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1) (2006) (emphasis added). “Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7). If an alien produces sufficient evidence to satisfy that burden, withholding of removal or deferring of removal is mandatory. 8 C.F.R. §§ 1208.16-18. However, as shall become clear from our discussion, the alien need not establish actual knowledge by government officials of torturous conduct particular to the petitioner. As noted at the outset, in denying Silva-Rengifo’s motion to reopen, the en banc BIA reversed the Board’s 2001 decision. The en banc Board relied upon the lan guage of section 1208.18(a)(1) of the Convention’s implementing regulations together with the Board’s decision in Matter of S-V-, 22 I & N Dec. 1306 (BIA 2000). The Board reasoned that Silva-Rengifo had not established that any torture he might be subjected to “would be meted out by the government or those acting with the consent or actual acquiescence of the government,” and that the Convention “does not extend to those who are harmed by groups the government is unable to control.” App. at 38 (emphasis added). We cannot accept the Board’s conclusion that the acquiescence that must be established under the CAT requires actual knowledge of torturous activity as required in Matter of S-V-. Similarly, although a government’s ability to control a particular group may be relevant to an inquiry into governmental acquiescence under the CAT, that inquiry does not turn on a government’s “ability to control” persons or groups engaging in torturous activity. See, e.g. Tunis v. Gonzales, 447 F.3d 547, 551 (7th Cir.2006) (finding the issue of the Sierra Leone government’s ability to control torture by private individuals irrelevant where the torturous activity — female circumcision —" }, { "docid": "3291265", "title": "", "text": "having concluded that Orellana-Arias did not suffer harm rising to the level of persecution, also concluded that he could not show that it was more likely than not that Orellana-Arias would be tortured should he return to El Salvador. All of his fear, the immigration judge concluded, was based on speculation. The immigration judge acknowledged that a couple of police officers had shot at him on one occasion as Orellana-Arias ran away from them, but the court concluded, with good reason based on Orellana-Arias’s testimony, that this was a case of mistaken identity or a random act of violence and not torture inflicted by or at the behest of a public official. Orellana-Arias presented country condition reports speaking to the violence in the country and the government’s inability to control it, including its acquiescence that results from corruption. R. 130-31, 134, 138. Nevertheless, none of this constituted evidence that Orel-lana-Arias specifically would be targeted for torture by the government or due to its acquiescence. “Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” Lozano-Zuniga, 832 F.3d at 831 (citing 8 C.F.R. § 1208.18(a)(7)). We are not compelled to overrule the Board’s finding that Orellana-Arias did not demonstrate that any torture would be at the acquiescence (or willful blindness, for that matter, see footnote 3, supra) of the government. The Board’s determination (along with that of the immigration judge where the Board had not spoken) is supported by reasonable, substantial, and probative evidence on the record considered as a whole and therefore the petition for review is DENIED. . After the immigration judge certified the record back to the Board, on November 13, 2014, the Board dismissed the appeal without issuing a briefing schedule. R. 122. On December 15, 2014 Orellana-Arias filed a motion for reconsideration with the Board, arguing that it was procedural error to dismiss the appeal without briefing. The Department did not oppose the motion for reconsideration and the Board granted the" }, { "docid": "6483496", "title": "", "text": "acquiescence of a public official or other person acting in an official capacity,” id. § 208.18(a)(1) (emphasis added). Here, neither the IJ nor the BIA disputed that it was more likely than not that Lopez-Soto would be tortured if removed. Rather, the BIA concluded that Petitioner “failed to establish eligibility for relief under the Convention Against Torture because he has not shown that the government acquiesces in the torturous activities of the gang, the Mara 18.” BIA slip op. at 1 (J.A. 517); see also Oral Decision at 13-14 (J.A. 509-10) (IJ’s holding that Lopez-Soto was not eligible). The only question, then, is whether the conclusion that the government does not acquiesce in such torturous activities is supported by substantial evidence. Petitioner argues that the BIA and IJ committed legal error in focusing exclusively on the national government’s acquiescence — rather than that of local authorities — which requires, at minimum, a remand to the BIA for it to determine whether local government officials acquiesced in the torturous activities of Mara 18. See Br. for Pet. at 32; see also Li Chen Zheng v. Ashcroft, 332 F.3d 1186, 1191-92 (9th Cir.2003) (discussing acquiescence of local Chinese officials in smuggler’s torturous acts); Ali v. Reno, 237 F.3d 591, 598 (6th Cir.2001) (finding no acquiescence based on actions of the local level of a national police force). The government argues that Petitioner is barred from raising the argument regarding acquiescence of local government because he failed to raise it before the IJ or BIA. Br. for Gov’t at 25. The government’s argument is misplaced; the record demonstrates that Petitioner has continuously advanced his CAT claims with reference to local as well as national authorities. See J.A. 6; Supp’l App. 18, 32. Despite this, even accepting arguen-do Petitioner’s argument that the IJ and the BIA committed a legal error by not analyzing acquiescence of local government officials, we find that the BIA’s holding that the government does not “acquiesce” in Mara 18’s activities is supported by substantial evidence. “Acquiescence” as used in 8 C.F.R. § 208.18 does not require “knowing acquiescence” in or" }, { "docid": "1389487", "title": "", "text": "CAT protection — in particular, the evidence that “the police do not take seriously what they perceive as gang-on-gang violence” and the evidence that he “feared reporting the [gang] attacks to police.” “To warrant CAT protection, an alien must prove, first, that it is more likely than not that he will be tortured if removed to the proposed country of removal and, second, that this torture will occur at the hands of government or with the consent or acquiescence of govem- merit.” Turkson v. Holder, 667 F.3d 523, 526 (4th Cir.2012) (emphasis added) (citing 8 C.F.R. § 1208.16(c)(2)). “Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7). In this case, the IJ concluded that Martinez had not made the necessary showing, finding that because Martinez “never reported the shooting or other threats to his life to the police in El Salvador” and because “country condition information reflects that government officials in El Salvador are taking some steps to address the difficult problem of gang violence there,” he failed to show that the Salvadoran government would acquiesce in his future torture. The BIA affirmed on similar grounds, holding that “respondent cannot complain that the Government did not prosecute his attackers because he never made a report” and noting that the “Government of El Salvador has made attempts to reduce or control gang activity,” citing several reports about country conditions in El Salvador. We presume that, in reaching these conclusions, the IJ and the BIA reviewed the evidence presented to them and made their decisions based on the relevant evidence. See Larita-Martinez v. INS, 220 F.3d 1092, 1095-96 (9th Cir.2000) (“[A]n alien attempting to establish that the Board violated his right to due process by failing to consider relevant evidence must overcome the presumption that it did review the evidence”); Man v. INS, 69 F.3d 835, 838 (7th Cir.1995) (“[A]bsent evidence to the contrary, we assume that the BIA reviewed the specific" }, { "docid": "13215057", "title": "", "text": "deny this claim. IV. Unlike asylum and withholding of removal, the CAT does not require that Marroquin-Ochoma show a protected ground to be eligible for relief. Rather, to qualify for CAT relief, Marroquin-Ochoma must demonstrate that it is more likely than not that she will be tortured if removed to Guatemala. See 8 C.F.R. § 1208.16(c)(2). To provide a basis for relief, the torture must be “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Id. § 1208.18(a)(1). For purposes of CAT relief, “[acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene.” Id. § 1208.18(a)(7). “This inquiry centers upon the willfulness of a government’s non-intervention. A government does not acquiesce in the torture of its citizens merely because it is aware of torture but powerless to stop it, but it does cross the line into acquiescence when it shows willful blindness toward the torture of citizens by third parties.” Mouawad v. Gonzales, 485 F.3d 405, 413 (8th Cir.2007) (internal quotations and citation omitted). Marroquin-Ochoma has submitted numerous articles and reports showing the government’s difficulty in controlling the extensive gang violence in Guatemala, as well as some evidence of general police reluctance to pursue gang members. Based on this evidence, she argues that the Guatemalan government “condones” the gang’s activity. But the record also includes evidence that the government aggressively prosecutes gang members. On the whole, the record before us indicates that law enforcement is weak and inexperienced, not that it acquiesces in gang activity. See Bartolo-Diego v. Gonzales, 490 F.3d 1024, 1029 (8th Cir.2007) (“Even though the government’s failure to investigate and punish other individuals and clandestine criminal groups who break the law has resulted in human rights abuses, the failure is due more to a weak and inefficient judicial system than to government acquiescence or approval.”). Significantly, the record also includes evidence that the police did respond to her report by increasing" }, { "docid": "22045252", "title": "", "text": "of] the Convention Against Torture bears the burden of establishing ‘that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.’ ” Sevoian v. Ashcroft, 290 F.3d 166, 174-175 (3d Cir.2002) (quoting 8 C.F.R. § 208.16(c)(2)). “The United States Senate specified this standard, as well as many of the other standards that govern relief under the Convention, in the several ‘understandings’ that it imposed on the United States’ ratification of the Convention Against Torture.” Id. at 175 (citations omitted). Unlike with asylum or withholding of removal, an alien seeking relief under the CAT need not establish that he/she is a “refugee” and therefore need not establish that torture is inflicted “on account of’ any protected status. See Amanfi v. Ashcroft, 328 F.3d 719, 725 (3d Cir.2003) (“A petition for protection under the Convention Against Torture differs significantly from petitions for asylum or withholding of removal because the alien need not demonstrate that he will be tortured on account of a particular belief or immutable characteristic.”). Rather, he/ she must establish a likelihood of being subjected to torturous acts inflicted “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1) (2006) (emphasis added). “Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7). If an alien produces sufficient evidence to satisfy that burden, withholding of removal or deferring of removal is mandatory. 8 C.F.R. §§ 1208.16-18. However, as shall become clear from our discussion, the alien need not establish actual knowledge by government officials of torturous conduct particular to the petitioner. As noted at the outset, in denying Silva-Rengifo’s motion to reopen, the en banc BIA reversed the Board’s 2001 decision. The en banc Board relied upon the lan guage of section 1208.18(a)(1) of the Convention’s implementing regulations together with the Board’s decision" }, { "docid": "23127614", "title": "", "text": "protected ground. “Torture” under the CAT is “an extreme form of cruel and inhuman treatment,” which is defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted” for purposes such as interrogation, punishment, intimidation, coercion, or discrimination, “when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a). A public official has “acquiesced” when, “prior to the activity constituting torture,” the public official “ha[s] awareness of such activity and thereafter breach[es] his or her legal responsibility to intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7). “Acquiescence” does not require official “consent or approval”; it “requires only that government officials know of or remain willfully blind to an act and thereafter breach their legal responsibility to prevent it.” Khouzam v. Ashcroft, 361 F.3d 161, 170-71 (2d Cir.2004). Delgado argues that she is entitled to withholding of removal under the CAT because, if removed to Colombia, she is likely to be tortured by the FARC; she claims, moreover, that “she can expect no protection from her government.” The IJ denied this claim, finding that Petitioner had failed to meet the standard for CAT relief because “the actions that took place in Colombia against [Petitioner] were not done by government officials or anyone acting with the consent or acquiescence of government officials.” The BIA affirmed, stating only that “the record is devoid of any evidence from which we could infer that any harm the [Petitioner] might suffer upon return would be with the acquiescence of the Colombian government.” While we offer no opinion as to whether Petitioner’s CAT argument should succeed, we remand the issue for reconsideration because the BIA appears to have misstated the record, and the agency’s application of the law with respect to government acquiescence in third-party actions does not seem to comport with our most recent rulings on that point. Contrary to the BIA’s characterization of the record, Petitioner testified that several days after her kidnapping she" }, { "docid": "20623755", "title": "", "text": "Mexico. He claims that Julio, the bully who stabbed him with the ice pick when Petitioner was ten years old, still lives in his former neighborhood. He also cites news articles detailing atrocities committed against gay men throughout Mexico. In addition, he repeatedly relies on a 2008 report from the Commission of Human Rights of the Federal District that found that over the past 10 years, 80% of homophobic murders in Mexico City have gone unpunished, and that a poll conducted in 2011 found that the police were identified as the group most intolerant of the gay community. Further, Petitioner argues that even if places in Mexico, such as Mexico City, are more tolerant of openly gay men, he cannot relocate there because his sister lives in Acapulco. He also argues that his HIV-positive diagnosis makes relocation unreasonable. While Petitioner may face violence if he returns to Mexico, we do not find that the record compels us to the conclusion that torture is more likely than not to occur. The fact that Julio still lives in his old neighborhood does not mean that twenty-five years later he still seeks to harm the Petitioner, nor that such harm would be with the government’s acquiescence. See 8 C.F.R. § 1208.18(a)(7) (“Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.”). In addition, while the numerous articles and studies cited by the Petitioner indicate that gay men have been victims of violence in Mexico, these do not suggest that the Petitioner is more likely than not to face such violence. See Rashiah, 388 F.3d at 1133 (“Though the country report supports the contention that torture occurs in Sri Lanka, it does not demonstrate that it is more likely than not that petitioner will be tortured if he returns.”) (emphasis in original). Moreover, the fact that Petitioner’s sister lives in Acapulco does not mean that he cannot move to an area of Mexico more accepting of homosexuals, especially since" }, { "docid": "22432589", "title": "", "text": "Tapia Madrigal might suffer. “Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” 8 C.F.R. § 208.18(a)(7). Although the public official must have “awareness” of the torturous activity, he need not have actual knowledge of the specific incident of torture. See Li Chen Zheng v. Ashcroft, 332 F.3d 1186, 1194-96 (9th Cir.2003). Acquiescence also does not require that the public official approve of the torture, even implicitly. See id. It is sufficient that the public official be aware that torture of the sort feared by the applicant occurs and remain willfully blind to it. See id.; Aguilar-Ramos, 594 F.3d at 705-06. Importantly, an applicant for CAT relief need not show that the entire foreign government would consent to' or acquiesce in his torture. He need show only that “a public official” would so acquiesce. 8 C.F.R. § 208.18(a)(1); see Li Chen Zheng, 332 F.3d at 1189-96 (remanding a CAT claim to the BIA where corrupt Chinese officials at the local level colluded with human smugglers, even though the national government “appears to be taking active measures to target people smugglers,” id. at 1191). Voluminous evidence in the record explains that corruption of public officials in Mexico remains a problem, particularly at the state and local levels of government, with police officers and prison guards frequently working directly on behalf of drug cartels. Facing analogous facts, the Eighth Circuit held that eligibility for CAT relief does not require that the public official [who acquiesces in torture] be executing official state policy or that the public official be the nation’s president or some other official at the upper echelons of power---- [I]t is not contrary to the purpose of the CAT ... to hold Mexico responsible for the acts of its officials, including low-level ones, even when those officials act in contravention of the nation’s will.... Ramirez-Peyro v. Holder, 574 F.3d 893, 901 (8th Cir.2009). We agree. If public officials at the state and local level" }, { "docid": "6189339", "title": "", "text": "plagued by “widespread impunity for human rights abuses by officials.” We discussed the “acquiescence” element of a claim for deferral of removal under the Convention Against Torture at some length in our very recent decision in Rodríguez-Molinero v. Lynch, a decision that can provide some useful guidance for the immigration judge and the Board on remand of the present case. We noted that the immigration judge had erred in saying that in order to be a ground for deferral of removal the infliction, instigation, consent, or acquiescence in torture must be by the Mexican government rather than just by Mexican police officers or other government employees. Rodriguez-Molinero v. Lynch, No. 15-1860, 808 F.3d 1134, 1136-37, 2015 WL 9239398, at *4-5 (7th Cir. Dec. 17, 2015). Deferral is warranted by severe pain or suffering “inflict ed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). “Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” Id., § 1208.18(a)(7). Evidence that Mexican police participate as well as acquiesce in torture is found in abundance in this case as it was in Rodrí-guez-Molinero. Nor does it matter if the police officers who will torture Mendoza-Sanchez if he’s forced to return to Mexico are “rogue officers individually compensated by [a gang member] to engage in isolated incidents of retaliatory brutality, rather than evidence of a broader pattern of governmental acquiescence in torture.” Rodriguez-Molinero v. Lynch, supra, 808 F.3d at 1139, 2015 WL 9239398, at *9. It is irrelevant whether the police are “rogue” (in the sense of not serving the interests of the Mexican government). A petitioner for deferral of removal under the Convention Against Torture need not prove that the Mexican government is complicit in the misconduct of its police officers. It’s simply not enough to bar removal if the government may be trying, but without much success, to" }, { "docid": "5538007", "title": "", "text": "crime was “particularly serious” based on all the underlying circumstances unless he raises a constitutional or legal issue about the decision. See 8 U.S.C. § 1252(a)(2)(B)(ii); Herrera-Ramirez v. Sessions, 859 F.3d 486, 487 (7th Cir. 2017); Estrada-Martinez, 809 F.3d at 892-94. Bernard does not meaningfully engage with this jurisdictional problem; he asserts simply that “there is a legal dispute on whether a domestic battery can be regarded a ‘particularly serious crime.’” (Reply Br. at 8.) But he raises no legal argument, instead maintaining that, “based on the nature and underlying facts of the battery,” (id.) his crime was not particularly serious. Attempts such as this to recharac-terize the particulars of a crime raise factual, not legal, issues. Herrera-Ramirez, 859 F.3d at 488; Estrada-Martinez, 809 F.3d at 892-94. We therefore lacks jurisdiction to review the “particularly serious crime” finding. Herrera-Ramirez, 859 F.3d at 488; Fuller v. Lynch, 833 F.3d 866, 870-71 (7th Cir. 2016); Estrada-Martinez, 809 F.3d at 892-93. Thus the only relief Bernard could be eligible for is deferral of removal under the CAT. See Estrada-Martinez, 809 F.3d at 889. An applicant seeking this relief has the burden of demonstrating that he is “more likely than not to be tortured” in the proposed country of removal. 8 C.F.R. §§ 1208.16(c)(2)-(3), 1208.17(a). We interpret that standard liberally, requiring “a substantial risk that a given alien will be tortured if removed from the United States.” Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1135-36 (7th Cir. 2015). Furthermore, “CAT protection requires evidence that the Petitioner will be tortured by the government, or with the government’s acquiescence.” Lopez v. Lynch, 810 F.3d 484, 492 (7th Cir. 2016). When evaluating whether the petitioner has met his burden, the IJ “must address various factors such as evidence of past to'rture, ability to relocate within the country, evidence of grave human rights violations or other relevant country conditions.” Orellana-Arias v. Sessions, 865 F.3d 476, 489 (7th Cir. 2017); see 8 C.F.R. § 1208.16(c)(3)(i)~(iv). Evidence of generalized violence is not enough; the IJ must conclude that there is a substantial risk that the petitioner will be targeted specifically. Lozano-Zuniga" }, { "docid": "22342985", "title": "", "text": "establish that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2); see also Nuru v. Gonzales, 404 F.3d 1207, 1221 (9th Cir.2005). Torture is “an extreme form of cruel and inhuman treatment,” 8 C.F.R. § 208.18(a)(2), “that either (1) is not lawfully sanctioned by that country or (2) is lawfully sanctioned by that country, but defeats the object and purpose of CAT,” Nuru, 404 F.3d at 1221. In addition, the torture must be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Zheng v. Ashcroft, 332 F.3d 1186, 1188 (9th Cir.2003) (quoting 8 C.F.R. § 208.18(a)(1)) (emphasis and internal quotation marks omitted). “Thus relief under the Convention Against Torture requires a two part analysis — first, is it more likely than not that the alien will be tortured upon return to his homeland; and second, is there sufficient state action involved in that torture.” Tamara-Gomez v. Gonzales, 447 F.3d 343, 351 (5th Cir.2006). In addressing the state-action prong of her CAT claim, Garcia-Milian points to her testimony that the police were unwilling to investigate the attack by the masked men which occurred before she left the country, implicitly arguing that because the police previously acquiesced in torture, the police are likely to acquiesce in future instances of torture. See Reyes-Sanchez v. Atty. Gen., 369 F.3d 1239, 1242 n. 7 (11th Cir.2004). She has also submitted evidence that the Guatemalan government has been generally ineffective in preventing or investigating violence against women. We must determine whether this evidence compels the conclusion that the Guatemalan government would acquiesce in torture if Garcia-Milian returned to Guatemala. Public officials acquiesce in torture if, “prior to the activity constituting torture,” the officials: (1) have awareness of the activity (or consciously close their eyes to the fact it is going on); and (2) breach their legal responsibility to intervene to prevent the activity because they are unable or unwilling to oppose it. Ornelas-Chavez v." }, { "docid": "20623756", "title": "", "text": "in his old neighborhood does not mean that twenty-five years later he still seeks to harm the Petitioner, nor that such harm would be with the government’s acquiescence. See 8 C.F.R. § 1208.18(a)(7) (“Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.”). In addition, while the numerous articles and studies cited by the Petitioner indicate that gay men have been victims of violence in Mexico, these do not suggest that the Petitioner is more likely than not to face such violence. See Rashiah, 388 F.3d at 1133 (“Though the country report supports the contention that torture occurs in Sri Lanka, it does not demonstrate that it is more likely than not that petitioner will be tortured if he returns.”) (emphasis in original). Moreover, the fact that Petitioner’s sister lives in Acapulco does not mean that he cannot move to an area of Mexico more accepting of homosexuals, especially since he has lived the last twenty-five years without his sister. See 8 C.F.R. § 1208.16(c)(3) (in determining whether to grant CAT protection, courts should examine whether the petitioner could relocate to another part of the country where he is not likely to be tortured). The record also reflects that medical treatment for HIV is free in Mexico, and that there are 57 clinics for HIV treatment located throughout the country. Therefore, we find that the Petitioner did not satisfy his burden to show that it is more likely than not that he would be tortured by the government or with the government’s acquiescence if he returned to Mexico. The substantial evidence in the record supports the BIA’s decision and does not call for a contrary conclusion. As a result, the Petitioner is not entitled to deferral of removal under CAT. III. CONCLUSION For the foregoing reasons, Petitioner’s petition is DENIED and the BIA’s decision is AFFIRMED. . The information technically states that Petitioner is charged with violating \"I.C. 35-48-4 — l(b).” However, this is an" }, { "docid": "2513956", "title": "", "text": "578-79 (8th Cir.2009) (holding that opposition to a gang “does not compel a finding that the gang’s threats were on account of an imputed political opinion”). Moreover, nothing in the record suggests that MS-13 targeted Somoza for political reasons. Rather, the gang attacked him for resisting its extortionate demands. Accordingly, the BIA’s legal determinations were correct, and substantial evidence supports its decision to deny withholding of removal under § 1231(b)(3)(A). Unlike § 1231, the CAT does not require Somoza to show he belongs to a protected group. Id. at 579. “Rather, to qualify for CAT relief, [Somoza] must demonstrate that it is more likely than not that [he] will be tortured if removed to Guatemala.” Id. (citing 8 C.F.R. § 1208.16(c)(2)). The torture must be “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). Because Somoza does not contend that his predicted torture would be by or at the instigation of or with the consent of Guatemalan officials, he must show that public officials will acquiesce in his torture. Demonstrating “acquiescence of a public official” requires proof “that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” Id. § 1208.18(a)(7). “This inquiry centers upon the willfulness of a government’s non-intervention.” Mouawad v. Gonzales, 485 F.3d 405, 413 (8th Cir.2007). “A government does not acquiesce in the torture of its citizens merely because it is aware of torture but powerless to stop it, but it does cross the line into acquiescence when it shows willful blindness toward the torture of citizens by third parties.” Marroquin-Ochoma, 574 F.3d at 579 (quoting Mouawad, 485 F.3d at 413). Here, the record does not compel the conclusion that it is more likely than not that Somoza will be tortured with the acquiescence of a public official. Although a 2010 Department of State Human Rights Report on Guatemala observes that two-thirds of Guatemalan police districts remained understaffed, another" }, { "docid": "23078743", "title": "", "text": "control Moncho, such that his criminal activity must be attributed to the government, and the decision to deny asylum was thus not contrary to law or an abuse of discretion. See 8 U.S.C. § 1252(b)(4)(D). It follows from our conclusion on the asylum claim that substantial evidence also supports the IJ’s decision denying withholding of removal. See Ismail v. Ashcroft, 396 F.3d 970, 975 (8th Cir.2005). We also conclude that the IJ’s decision to deny Menjivar’s claim for relief under the Convention Against Torture was supported by substantial evidence. See Mompongo v. Gonzales, 406 F.3d 512, 514 (8th Cir.2005) (standard of review). Under the Convention, Menjivar must demonstrate that it is more likely than not that she would be subjected to torture if returned to El Salvador, 8 C.F.R. § 208.16(c)(2), and that such torture would be inflicted “with the consent or acquiescence of a public official.” 8 C.F.R. § 208.18(a)(1). “Acquiescence” at least requires prior awareness of the torture and a breach of a legal responsibility to intervene. 8 C.F.R. § 208.18(a)(7); Lopez-Soto v. Ashcroft, 383 F.3d 228, 240 (4th Cir.2004). The IJ found that the police did not ignore threats against Menjivar of which they had prior knowledge, and that the police did not “somehow acquiesce” in the commission of crimes against her. For the reasons discussed above, the evidence does not compel a finding that the El Salvadoran police have acquiesced or would acquiesce in Moncho’s criminal activities. The newspaper articles at most demonstrate that the government has a problem controlling gang activity of which it is aware, but this is insufficient to compel a finding of willful blindness toward the torture of citizens by third parties. See Lopez-Soto, 383 F.3d at 240-41. We therefore find that substantial evidence supports the BIA’s determination that Menjivar was not eligible for relief under the Convention Against Torture. For the foregoing reasons, the petition for review is denied. Petitioner’s motion to suspend ruling on appeal is also denied. . At oral argument, Menjivar suggested that the administrative decision should not be sustained on this basis, because it was not relied" }, { "docid": "2513957", "title": "", "text": "Guatemalan officials, he must show that public officials will acquiesce in his torture. Demonstrating “acquiescence of a public official” requires proof “that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” Id. § 1208.18(a)(7). “This inquiry centers upon the willfulness of a government’s non-intervention.” Mouawad v. Gonzales, 485 F.3d 405, 413 (8th Cir.2007). “A government does not acquiesce in the torture of its citizens merely because it is aware of torture but powerless to stop it, but it does cross the line into acquiescence when it shows willful blindness toward the torture of citizens by third parties.” Marroquin-Ochoma, 574 F.3d at 579 (quoting Mouawad, 485 F.3d at 413). Here, the record does not compel the conclusion that it is more likely than not that Somoza will be tortured with the acquiescence of a public official. Although a 2010 Department of State Human Rights Report on Guatemala observes that two-thirds of Guatemalan police districts remained understaffed, another country report indicates that Guatemala has partnered with the United Nations, the United States, Canada, and several European countries to enact anti-gang and anti-narcotics reform and to improve law enforcement practices. In this case, Guatemalan authorities investigated and even arrested Arturo after Somoza reported the gang violence, which demonstrates that local authorities are not unwilling to control MS-13. See Gutierrez-Vidal v. Holder, 709 F.3d 728, 733 (8th Cir.2013) (holding, un der substantial-evidence review, that local authorities are not unwilling to control gang violence where evidence indicates that they investigated the gang and made arrests). Somoza, however, claims to have heard that MS-13 bribed local police to release Arturo — an allegation he argues supports a conclusion that Guatemalan police would acquiesce in his torture if he is returned now. While it is possible that corruption contributed to Arturo’s release over ten years ago, the country reports provide numerous alternative explanations that do not involve government corruption. The Department of State report observes that many criminals avoid prosecution because “[jjudges, prosecutors, plaintiffs, and witnesses” experience frequent" }, { "docid": "20638747", "title": "", "text": "beliefs, the only evidence Lozano-Zuniga had for this proposition was a claim that a couple from his church had been killed and a letter from someone in his church that members had been verbally and physically abused. Discrimination and taunts by private citizens are not torture. Rashiah, 388 F.3d at 1132. Lozano-Zuniga has presented no evidence that he would be individually targeted or of the requisite amount of government action or collusion, and, as the immigration judge concluded, Lozano-Zuniga “has not provided enough details to determine if these experiences are even relevant to his claim.” Decision of the Immigration Judge at 16, (R. 83). Both the immigration judge and the Board found that Lozano-Zuniga failed to present sufficient evidence that it was more likely than not that he would be tortured at the hands of, or with the acquiescence of, a government official. “Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” Lopez v. Lynch, 810 F.3d 484, 493 (7th Cir. 2016) (citing 8 C.F.R. § 1208.18(a)(7)). As the Board held, “[t]he record does not sufficiently substantiate that any Mexican public official currently would seek to torture the respondent or would acquiesce in or exhibit willful blindness toward any torture inflicted on him by any gang member, any criminal, or anyone else.” Decision of the Board at 2-3. (R. 3-4). Based on the record, we cannot disagree. The record does not compel a conclusion that Lozano-Zuniga proved eligibility for withholding of removal or protection under CAT. Consequently, the petition for review is DENIED. . It is true, as Lozano-Zuniga argues, that the BIA only barely addressed his argument about his religion. The decision of the BIA, however, supplants that of the immigration judge. \"[W]e review the IJ's decision wherever the Board has not supplanted it with its own rationale; where the Board has spoken, we review its opinion.” Sarhan v. Holder, 658 F.3d 649, 653 (7th Cir. 2011)." }, { "docid": "9184349", "title": "", "text": "would be tortured if removed to the proposed country of removal.\" 8 C.F.R. § 1208.16(c)(2). To satisfy this standard, a petitioner must make two distinct showings. Turkson v. Holder , 667 F.3d 523, 526 (4th Cir. 2012) (citing 8 C.F.R. § 208.16(c)(2) ). First, the petitioner must demonstrate \"likely future mistreatment.\" Id. at 530. Specifically, the petitioner must prove that it is more likely than not that, if removed, he will endure \"severe pain or suffering\" that is \"intentionally inflicted.\" 8 C.F.R. § 1208.18(a)(1). And second, the petitioner must show that this \"likely future mistreatment\" \"will occur at the hands of government or with the consent or acquiescence of government.\" Turkson , 667 F.3d at 526. The second, \"acquiescence\" prong of the torture inquiry - directly at issue here - comes from the regulatory definition of \"torture.\" That definition requires not only that the petitioner will endure \"severe pain or suffering,\" but also that the harm will be \"inflicted by ... or with the consent or acquiescence of a public official.\" 8 C.F.R. § 1208.18(a)(1). \"Acquiescence,\" in turn, is shown when a public official, \"prior to the activity constituting torture, ha[s] awareness of such activity and thereafter breach[es] his or her legal responsibility to intervene to prevent such activity.\" Id. § 1208.18(a)(7). And as this court has held, \"awareness of such activity\" includes \"willful blindness.\" Suarez-Valenzuela v. Holder , 714 F.3d 241, 245-46 (4th Cir. 2013). In sum, where government agents themselves would not inflict the feared torture, a petitioner still may establish government acquiescence by showing that the government would have actual knowledge of torture or that it would turn a \"blind eye\" to torture by third parties. Id. An immigration judge heard Cruz-Quintanilla's case in June 2017. Cruz-Quintanilla testified that given his former membership in MS-13, he believed he would not be safe if removed to El Salvador. He feared that MS-13 would kill him for leaving the gang, or, given his visible gang-related tattoos, that a rival gang would attack him. Cruz-Quintanilla testified that gang members have extorted members of his family, and that one of Cruz-Quintanilla's" }, { "docid": "5538008", "title": "", "text": "Estrada-Martinez, 809 F.3d at 889. An applicant seeking this relief has the burden of demonstrating that he is “more likely than not to be tortured” in the proposed country of removal. 8 C.F.R. §§ 1208.16(c)(2)-(3), 1208.17(a). We interpret that standard liberally, requiring “a substantial risk that a given alien will be tortured if removed from the United States.” Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1135-36 (7th Cir. 2015). Furthermore, “CAT protection requires evidence that the Petitioner will be tortured by the government, or with the government’s acquiescence.” Lopez v. Lynch, 810 F.3d 484, 492 (7th Cir. 2016). When evaluating whether the petitioner has met his burden, the IJ “must address various factors such as evidence of past to'rture, ability to relocate within the country, evidence of grave human rights violations or other relevant country conditions.” Orellana-Arias v. Sessions, 865 F.3d 476, 489 (7th Cir. 2017); see 8 C.F.R. § 1208.16(c)(3)(i)~(iv). Evidence of generalized violence is not enough; the IJ must conclude that there is a substantial risk that the petitioner will be targeted specifically. Lozano-Zuniga v. Lynch, 832 F.3d 822, 830-31 (7th Cir. 2016); Lopez, 810 F.3d at 493. We review the denial of CAT deferral “under the highly deferential substantial evidence test” and will reverse “only if the record evidence compels a contrary conclusion.” Lopez, 810 F.3d at 492 (internal citations omitted). The Attorney General .-contends that we need not address the specifics of Bernard’s GAT claim because he does not challenge the finding that he could safely relocate within Jamaica. A party waives arguments that are not presented in the opening brief. Garg v. Potter, 521 F.3d 731, 736 (7th Cir. 2008). But there is not waiver in this instance. True, Bernard does not devote a section of his opening brief to relocation, as he did in his brief to the Board. But both of Bernard’s briefs to this court assert that violence-against and persecution of the LGBT community exists everywhere in Jamaica; he does not.focus solely on Spanish Town. Further, Bernard generally challenges the IJ’s decision to deny CAT relief based on his bisexuality, which encompasses the" } ]

[ { "docid": "15181565", "title": "", "text": "PER CURIAM. Heretofore, appellee has filed a petition for rehearing which was denied. It now offers for filing a second petition for rehearing. This last petition presents one of the matters included in its first petition and urges it with particular emphasis. We conclude that this Second Petition for Rehearing should be allowed filed in order that it may be passed upon by this Court. Thus, the appellee will have its record complete for presentation of its petition for certiorari. This second petition should be denied. Our opinion, reversing and remanding is based upon the conclusion that the right of appellee to cancel the policy did not exist because appellee had not delivered to the insured a copy of the policy containing the provisions covering cancellation — such being required by section 383.5 of the California Insurance Code. This section of the Insurance Code was not brought to the attention of the trial court. Its first appearance in this case is in the main brief of appellants upon this appeal. Ap-pellee urges that we cannot reverse the case solely upon this ground which was not brought to the attention of the trial court. The rules as to when and why the Supreme Court or a Court of Appeals will give consideration to an issue not raised below have been stated by Mr. Justice Black in Hormel v. Helvering, Commissioner, 312 U.S. 552, 556-559, 61 S.Ct. 719, 85 L.Ed. 1037. Also, see clear statement by Judge Riddick, of this Court, in United States v. Harrell, 8 Cir., 133 F.2d 504, 506-507, and see Bergeron v. Mansour, 1 Cir., 152 F.2d 27, 32. Compare Sulzbacher v. Continental Casualty Co., this Court, 8 Cir., 88 F.2d 122, 124. Some others, of numerous cases, are Bartholomew v. Commissioner of Internal Revenue, this Court, 186 F.2d 315, 319; New York, N. H. & H. R. Co. v. Reconstruction Finance Corporation, 2 Cir., 180 F.2d 241, 243-244; United States v. Brooks, 4 Cir., 176 F.2d 482, 483; and Yorkshire Ins. Co. v. United States, 3 Cir., 171 F.2d 374, 376. These rules may be summarized as" } ]

[ { "docid": "9791086", "title": "", "text": "railroad operations across the subject properties is sufficient, therefore, to meet the Defendant Railroad’s needs, and fee simple ownership is not required. As such, the court holds that the Defendant Railroad has not acquired fee title to the subject properties by virtue of adverse possession. Instead, the court holds that the Defendant Railroad has gained prescriptive easements across the properties, which the Plaintiff does not dispute. In a similar case involving a railroad suing a pipeline company for damages associated with the pipeline company’s location of its pipelines under the railroad’s tracks, a federal appeals court held that while a railroad’s easement rights are substantial and worthy of enforcement, those rights cannot deprive the owner of the servient estate or those claiming through such owner from making use of the land below the surface, when the use does not interfere with the maintenance and operation of the railroad. Kansas City Southern Ry. Co., 476 F.2d at 834-35. In line with that court’s ruling, this court finds that a jury must be empaneled in this cause to determine if the Plaintiffs use of the land below the Defendant Railroad’s tracks has interfered with the Defendant Railroad’s prescriptive easement rights in the subject properties, and if so, the amount of compensation to which the Defendant Railroad is entitled. B. Motion to Have Jury Hear Title Issues The Defendants assert that factual issues remain regarding the title issues in this case, because the court, on May 3, 2001, denied the Plaintiffs motion for summary judgment as to these issues. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted if two conditions are met. First, there must be no genuine issue as to any material fact; second, the moving party must establish that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). It has long been established that both conditions must be satisfied before an entry of summary judgment may be entered. United States Steel Corp. v. Darby, 516 F.2d 961, 962 (5th Cir.1975). In addition, the Supreme Court has plainly held that trial" }, { "docid": "17160008", "title": "", "text": "of the constitutional rights of appellant and that the prayer for injunction should be denied. By the terms of the decree the preliminary injunction entered in the cause was dissolved. Costs were awarded to appellees. The appellant has specified numerous assignments of error, but none of these challenge in any way the findings of fact made by the court below. The assignments are all directed toward the conclusions of law drawn from these findings. It is contended that the District Court erred in failing to find that the ordinance was invalid and that appellant was entitled to an injunction. In view of the fact that we think the District Court was without jurisdiction of this cause it is unnecessary for us to consider the mentioned assignments of error. Although the question of jurisdiction was not raised by the parties in the District Court nor in their briefs on appeal it was raised on oral argument before this Court. In any event it is necessarily before us and must be decided. An appellate federal court must, of its own motion and even against the consent or protest of the parties, satisfy itself not only of its own jurisdiction but also of that of the lower court in a cause under review. Mitchell v. Maurer, 1934, 293 U.S. 237, 55 S.Ct. 162, 79 L. Ed. 338; Electro Therapy Products Corporation v. Strong, 9 Cir., 1936, 84 F.2d 766; Miller v. First Service Corporation, 8 Cir., 1936, 84 F.2d 680, 109 A.L.R. 1179; Schell v. Food Machinery Corporation, 5 Cir., 1937, 87 F.2d 385, certiorari denied 1937, 300 U.S. 679, 57 S.Ct. 670, 81 L.Ed. 883. The jurisdiction of the District Court in this case is predicated upon the provisions of section 24(1) of the Judicial Code, 28 U.S.C.A. § 41(1). This section provides that the District Court shall have jurisdiction of “ * * * all suits of a civil nature, at common law or in equity, * * * where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and (a) arises under the" }, { "docid": "11316989", "title": "", "text": "* * Any person violating the provisions of this section shall be deemed guilty of a misdemeanor”. Appellant contends that this city ordinance is invalid because it conflicts with Section 560.405 RSMo 1949, V.A.M.S., which provides that, in order for a trespass of real property to be a misdemeanor the entry must be wilful, malicious, or wanton and that injury must result therefrom. Validity of this ordinance was not attacked in the court below and cannot be raised for the first time on appeal. This court has consistently held that a question of law not presented or passed on by the trial court cannot be raised on appeal. Helvering v. Hormel, 8 Cir., 1940, 111 F.2d 1; McGee v. Nee, 8 Cir., 113 F.2d 543; Frieze v. West American Ins. Co., 8 Cir., 1951, 190 F.2d 381; Zuckerman v. McCulley, 8 Cir., 170 F.2d 1015. Appellant further argues that appellee does not come within the terms of the ordinance, because it was not the “owner or his agent” of the property; that the land was neither enclosed nor improved; and that appellant had not refused “to leave the same when requested”. Appellee had been occupying and operating over this land since 1937 by virtue of its easement of right of way granted by the City. A railroad right of way has the attributes of a fee, including perpetuity and exclusive use and possession. Midland Valley R. Co. v. Jarvis, 8 Cir., 1928, 29 F. 2d 539, 61 A.L.R. 1064 and the many cases cited therein. The ownership of appellee under the easement of right of way is sufficient to bring it within the terms of the ordinance. Also, grading of a right of way constitutes an improvement of real estate. Baetjer v. Garzot, 1 Cir., 1943, 136 F.2d 453. Thus appel-lee comes within the purview of the ordinance. Appellant’s argument that he had not refused to leave the premises when requested is also rejected. The two clauses of the first complete sentence of the ordinance provide for two separate and distinct offenses, namely, unlawful entry and refusal to leave when" }, { "docid": "23491295", "title": "", "text": "Judgment Act. (2) That it affirmatively appears upon the face of the complaint that appellant’s policy, by its terms, covered Dorothy Shelton while she was in, possession of the assured’s automobile. (3) That appellant’s conduct in assuming the defense of Dorothy Shelton constituted a waiver of its right to deny its liability, and it may not now assert that its policy did not cover Dorothy Shelton while she was in possession of the assured’s car. (4) That appellant has an adequate remedy at law. The motion to dismiss, of course, admits all material facts well pleaded. Ansehl v. Puritan Pharmaceutical Co., 8 Cir., 61 F.2d 131, 133; Winget v. Rockwood, 8 Cir., 69 F.2d 326, 329. The question, then, is whether, upon the facts stated and admitted, the order of dismissal can he sustained for the reason given by the trial court (the existence of an adequate remedy at law) or for any other valid reason. City of St. Paul v. Certain Lands in City of St. Paul, Minn., 8 Cir., 48 F.2d 805, 807; Crossett Lumber Co. v. United States, 8 Cir., 87 F.2d 930, 932, 109 A.L.R. 1348. That an “actual controversy” exists between appellant and appellee within the meaning of the Declaratory Judgment Act is not and cannot be controverted. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000. The facts stated in the complaint show the existence of this controversy and how it has arisen. It does not conclusively appear from the face of the complaint that the policy in suit covered Dorothy Shelton. The appellee contends, however, that the complaint was properly dismissed because of (1) a deficiency of parties defendant, (2) an estoppel to deny liability, and (3) an adequate remedy at law. The trial court was of the opinion that the right of the appellant to assert that its policy did not cover Dorothy Shelton and her liability to the appellee, as a defense to any action at law which might be brought by the appellee against the appellant to recover the amount of" }, { "docid": "6825417", "title": "", "text": "member of the Court of Appeals for the District of Columbia, stated: «-* * * Although ‘property’ may be admitted to exist, whether in a trade-mark, a trade name or a corporate name, that is true, broadly speaking, whenever economic interests are protected by legal proc ess, but only to the extent that they are so protected.” (Emphasis supplied.) After eight years of non-publication appellant possessed neither business nor property, including goodwill, which could have been damaged by appellees’ monopoly within the period of limitation. We are of the opinion that the trial court was correct in holding: “ * * * ^ js dear from the allegations of the complaint, accepting the same to be true as alleged by plaintiff, that plaintiff had no established business or property during any period of time within the applicable statute of limitation, supra, which could have been injured or damaged by the monopoly and acts of attempt to monopolize, as here charged by him. As a consequence thereof, plaintiff’s complaint should be, and the same is hereby, dismissed, * * This case is affirmed. . Pursuant to § 5 of the Clayton Act, 15 TJ.S.C.A. § 16, the statute of limitations herein was suspended during the period January 6, 1953, until November 15, 1958, on account of the pendency of suits instituted by the United States against the appellees. See Kansas City Star Co. v. United States, 8 Cir., 1957, 240 F.2d 643, certiorari denied 354 U.S. 923, 77 S.Ct. 1381, 1 L.Ed.2d 1438. The trial court, in accordance with Powell v. St. Louis Dairy Co., 8 Cir., 1960, 276 F.2d 464, held that the Missouri three-year statute of limitations, Section 516. 130 RSMo 1949, V.A.M.S., was applicable. Accordingly, all damages, if any, which might have accrued to the appellant prior to January 7, 1950, were barred. . 2 Nims, Unfair Competition and TradeMarks (4th Ed.), § 272, p. 889: “ * * * The right secured by the copyright laws is the right to use a literary composition — the product of the mind and genius of the author — not" }, { "docid": "3450402", "title": "", "text": "the matter. On the other hand, if intervenors do succeed on the merits of their claims, they will necessarily have already proven the County’s case against PNM, as they will have shown that PNM was so clearly in violation of the Code that the County had a clear duty to enforce it against PNM. YI The judgment of the district court is REVERSED, and this case is REMANDED for proceedings consistent with this opinion. . Intervenors also raised stand-alone claims for declaratory and injunctive relief. Interve-nors have not challenged on appeal the district court’s dismissal of those claims. .The cases cited by PNM from New Mexico and the Tenth Circuit for the proposition that \"interpretation and enforcement of a zoning code under New Mexico law are not ministerial” (Appellees' Br. at 22) are not on point. Those cases involve the amendment of zoning ordinances, Hart v. City of Albuquerque, 126 N.M. 753, 975 P.2d 366, 368-69 (1999), or approval of a submitted subdivision plat, Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1209 (10th Cir.2000); Norton v. Vill. of Corrales, 103 F.3d 928, 929-30 (10th Cir.1996). . PNM argued below that the 1998 Code amendment as applied to it was invalid special or retroactive legislation, and that the Code could not apply to federal lands. The district court did not rely on those arguments in ruling on the 12(b)(6) motion, and they are not before us in this appeal. . A development permit is a requirement for any construction or other development activity within Santa Fe County. . Intervenors also argue that other provisions of the pre-amendment Code applied to the powerline regardless of the language apparently exempting utility-rights-of-way and easements. However, given the plain language of the exemption — “provisions of the Code shall not apply to, utility easements, utility rights-of-way” (3 Appellants' App. at 710 (emphasis added)) — this argument fails. {See 3 id. at 604 (stating that \"the Code” refers to the entirety of the County’s land-úse ordinance).) . To be exempt from any future amendment, a development permit (if required by the Code" }, { "docid": "11316988", "title": "", "text": "they believed from the evidence that appellant, at the time of his arrest, was engaged in sitting upon the roadbed of appellee’s right of way, hanging and swinging from the cable alongside of the tracks, and throwing rocks at said cable, all without lawful authority or the consent of appellee, then appellant was guilty of a misdemeanor under Section 79, Chapter 46, Revised Code, City of St. Louis (1948), and the jury should consider this in determining if there was probable cause for his arrest. The pertinent parts of this ordinance, which appellee pleaded in its answer, provide: “It shall be unlawful for any person without lawful authority, or without the express or implied consent of the owner or his agent, to enter any building or enter on any inclosed or improved real estate, lot or parcel of ground in the city; or, who being upon the land of another, shall fail or refuse to leave the same when requested so to do by the person lawfully in possession thereof, his agent or representative; * * * Any person violating the provisions of this section shall be deemed guilty of a misdemeanor”. Appellant contends that this city ordinance is invalid because it conflicts with Section 560.405 RSMo 1949, V.A.M.S., which provides that, in order for a trespass of real property to be a misdemeanor the entry must be wilful, malicious, or wanton and that injury must result therefrom. Validity of this ordinance was not attacked in the court below and cannot be raised for the first time on appeal. This court has consistently held that a question of law not presented or passed on by the trial court cannot be raised on appeal. Helvering v. Hormel, 8 Cir., 1940, 111 F.2d 1; McGee v. Nee, 8 Cir., 113 F.2d 543; Frieze v. West American Ins. Co., 8 Cir., 1951, 190 F.2d 381; Zuckerman v. McCulley, 8 Cir., 170 F.2d 1015. Appellant further argues that appellee does not come within the terms of the ordinance, because it was not the “owner or his agent” of the property; that the land was" }, { "docid": "11316987", "title": "", "text": "of Police or any other officer placed in authority over me.” It further provides that the watchman will wear such dress, badge, or emblem as designated and will report to the Captain in charge of the police district to which he is assigned. These recitations in the oath lend support to the ruling of the trial court that a private watchman has the power to arrest. As we sustain the court’s conclusion that Gabbert had the power to arrest by virtue of his commission, it follows clearly under the authorities that he could arrest without a warrant, for the commission of a misdemeanor occurring in his presence. Garske v. United States, 8 Cir., 1 F.2d 620; Anderson v. Sager, 8 Cir., 1949, 173 F.2d 794; Leve v. Putting, Mo.App., 196 S.W. 1060; Wehmeyer v. Mulvihill, 150 Mo.App. 197, 206, 130 S.W. 681, and cases cited. The next question considered is whether the circumstances shown by the evidence were such as to authorize the arrest of appellant by Gabbert. The court charged the jury that if they believed from the evidence that appellant, at the time of his arrest, was engaged in sitting upon the roadbed of appellee’s right of way, hanging and swinging from the cable alongside of the tracks, and throwing rocks at said cable, all without lawful authority or the consent of appellee, then appellant was guilty of a misdemeanor under Section 79, Chapter 46, Revised Code, City of St. Louis (1948), and the jury should consider this in determining if there was probable cause for his arrest. The pertinent parts of this ordinance, which appellee pleaded in its answer, provide: “It shall be unlawful for any person without lawful authority, or without the express or implied consent of the owner or his agent, to enter any building or enter on any inclosed or improved real estate, lot or parcel of ground in the city; or, who being upon the land of another, shall fail or refuse to leave the same when requested so to do by the person lawfully in possession thereof, his agent or representative; *" }, { "docid": "23007141", "title": "", "text": "41 S.Ct. 419, 65 L.Ed. 801], Chase contended again that the United States “having relied at the first trial upon the single proposition that the Act of 1893 repealed the Act of 1882 and thereby cut off the right of these Indian claimants to allotments, and having failed in that defense, cannot, upon the second trial, abandon that defense and insist that the Act of May 11, 1912, repealed the Act of 1882.” In affirming the Circuit Court’ of Appeals the Supreme Court said (256 U.S. at 10, 41 S.Ct. at 419, 65 L.Ed. 801) : “The proposition has a relevant and conclusive application when a judgment of a former action is pleaded but limited application when urged in the same suit, it expresses a practice only and useful as such, but not a limitation of power.” It is quite true that if Chase had obtained a decree in his favor at the first trial and this decree had been affirmed on appeal, such'decree in any subsequent litigation between the same parties would, oh familiar principles of res judicata, have been conclusive on Chase’s right to the allotment, despite the fact that the United States had a good legal defense which it neglected to set up. But that was not what happened. Cases like Rhodes v. Commissioner, 4 Cir., 111 F.2d 53, and Commissioner v. Richter, 3 Cir., 114 F.2d 452, certiorari granted, November 18, 1940, 61 S.Ct. 172, 85 L.Ed.-, cited by the taxpayer, are clearly distinguishable. They rest on the proposition that an appellate court must not reverse a judgment or decree below upon a ground not presented to the lower court or considered by it. Whether or not this proposition is universally true (cf. Helvering v. Hormel, 8 Cir., 111 F.2d 1, certiorari granted, October 14, 1940, 61 S.Ct. 35, 85 L.Ed. -), it has no application here, for in the cases at bar the contention that appellees were taxable under Section 213 was presented to the court below, and that court, in rendering the judgments now appealed from, erroneously declined, as we think, to consider such" }, { "docid": "7795516", "title": "", "text": "that the benefit to the public was small in comparison to the detriment of the property owner. The court concluded that the ordinance was “unconstitutional as violative of due process of law.” It enjoined enforcement of the ordinance. The court held that the appellees were not entitled to damages for enforcement of the ordinance during the pendency of the action as any damages during that period were minimal and speculative. “Since it is clear that this was a good faith attempt by the city to exercise its police power and since there is no demonstration that there will be any further improper interference with the plaintiffs’ property rights, the Court does not at this time award damages and thus, in effect, turn this action into an eminent domain proceeding.” It retained jurisdiction for the purpose of granting any further relief which might become necessary and proper under 28 U.S.C. § 2202. We reverse. The appellees concede that the city’s purpose is a public one. They acknowledge that the city can accomplish its objective by the proper exercise of its eminent domain power — compensating the railroads for the damage to their property. They argue, however, that the ordinance is violative of the Fifth Amendment to the United States Constitution and Article 1, Section 13 of the Minnesota Constitution in that it takes the railroads’ property without compensation. Neither constitutional provision interposes a barrier to the imposition of restrictions on the use of private property if a zoning ordinance is enacted pursuant to a valid exercise of the police power. Goldblatt v. Town of Hempstead, 369 U.S. 590, 593, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); City of Marysville v. Standard Oil Co., 27 F.2d 478 (8th Cir. 1928), aff’d, Standard Oil Co. v. Marysville, 279 U.S. 582, 49 S.Ct. 430, 73 L.Ed. 856 (1929); Kiges v. City of St. Paul, 240 Minn. 522, 62 N.W.2d 363, 369-370 (1953); State ex rel. Beery v. Houghton, 164 Minn. 146, 204 N.W. 569, 54 A.L.R. 1012 (1925), aff’d mem., 273 U.S. 671, 47 S.Ct. 474, 71 L.Ed. 832 (1927). The test of whether" }, { "docid": "9791084", "title": "", "text": "“fee simple” appear. In fact, the procedure set forth in section 8 of the Act makes clear that the Act merely grants the railroad the right of eminent domain, as opposed to an outright grant of land. And, the land records of Marshall County do not reflect that any condemnation proceedings were ever commenced by the Defendant Railroad, nor are there any recorded deeds from land owners conveying property to the Defendant Railroad, nor are there any Court decrees conveying title from the land owners to the Defendant Railroad. Hence, the court finds that the Defendants’ assertion that the 1852 Act granted the Defendant Railroad fee simple ownership of the subject properties is without merit. 2. Adverse Possession The Defendant Railroad next argues that, because it has been occupying railroad tracks across the subject properties for over 150 years, it has acquired fee simple title in the land by virtue of adverse possession. The elements required to establish a claim for adverse possession of land and the elements that are required to establish a prescriptive easement are identical. Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1152-53 (Miss.1992). The Mississippi Supreme Court has held, in a case involving a disputed deed of property to a railroad, that where an easement will satisfy a railroad’s pur poses, a prescriptive easement — and not fee ownership — will be the interest deemed to be possessed by the railroad. New Orleans & Northeastern R.R. v. Morrison, 203 Miss. 791, 35 So.2d 68, 70 (1948). In other words, a railroad does not gain fee title to property simply by virtue of engaging in railroad operations and utilizing railroad tracks that run over the property. New Orleans & Northeastern R.R., 35 So.2d at 71; see also Kansas City Southern Ry. Co. v. Arkansas Louisiana Gas Co., 476 F.2d 829, 834 (10th Cir.Í973). Here, easements will satisfy the Defendant Railroad’s purposes. The railroad tracks across the land are utilized solely for railroad operations, and the Defendant Railroad has never used the land for any other purpose. Prescriptive easements that allow the Defendant Railroad to conduct" }, { "docid": "8178604", "title": "", "text": "FAGG, Circuit Judge. In this case, we must decide whether an Indian tribe has authority to regulate liquor sales on land held in fee by non-Indians in non-Indian communities within the boundaries of the tribe’s reservation. The appel-lees, an American Legion Club, a non-Indian individual, and the South Dakota cities of Timber Lake, Isabel, and Dupree, all operate liquor establishments within the Cheyenne River Sioux Reservation on fee-patented lands in the cities. The appellees refused to obtain liquor and business licenses as required by ordinances 48 and 1 of the Cheyenne River Sioux Tribe, and the tribe brought an action in tribal court seeking to compel the appellees’ compliance. The Cheyenne River Sioux Tribal Court permanently enjoined the appellees from operating their businesses within the reservation until they comply with the tribe’s liquor control ordinance and business license ordinance. Cheyenne River Sioux Tribe v. Isabel City Package Liquor, 18 Indian L.Rep. 6079 (Chy.R.Sx.Tribal Ct. Jan. 8, 1991). The tribe’s court of appeals affirmed in an unpublished opinion. Cheyenne River Sioux Tribe v. Dupree American Legion Club, mem. op. and order (Chy.R.Sx.Tribal Ct.App. Apr. 2, 1992). The appellees then brought this action in federal district court against the tribe, its chairman, and its police chief (collectively the tribe), seeking permanently to enjoin the tribe from enforcing the ordinances against them. Before a trial on the merits of the permanent injunction, the district court issued a preliminary injunction preventing the tribe from enforcing the ordinances against the appellees. The tribe appeals the district court’s issuance of the preliminary injunction. We reverse the issuance of the preliminary injunction and remand with instructions. In deciding a motion for a preliminary injunction, a district court weighs the movant’s probability of success on the merits, the threat of irreparable harm to the movant absent the injunction, the balance between this harm and the injury that the injunction’s issuance would inflict on other interested parties, and the public interest. See Sanborn Mfg. Co. v. Campbell Hausfield/Scott Fetzer Co., 997 F.2d 484, 485-86 (8th Cir.1993); Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 112-14 (8th Cir.1981)" }, { "docid": "224658", "title": "", "text": "on appeal. Goldie v. Cox, 8 Cir., 130 F.2d 695, 715; Zuckerman v. McCulley, 8 Cir., 170 F.2d 1015, 1018; Hoyt v. Clancey, 8 Cir., 180 F.2d 152, 154; Barnard v. Wabash Railroad Co., 8 Cir., 208 F.2d 489. It is safe to say that this rule should be adhered to except ‘where the obvious result would be a plain miscarriage of justice.’ Hormel v. Helvering, 312 U.S. 552, 558, 61 S.Ct. 719, 772, 85 L.Ed. 1037. The application of the rule in this case will not produce a plain miscarriage of justice. A departure from the rule would not be justified. The defendant had his full day in court. Having made no objections to the legal theory upon which the issue of his liability was submitted to the jury, either by asking for instructions or taking exceptions to the instructions given, he is in no position to assert that the District Court committed prejudicial error in not submitting the case upon a different theory.” 209 F.2d 550, 553-554. To like effect, see Stanley v. United States, 6 Cir., 245 F.2d 427, 435. We believe that the result reached in Sisco is sound and conducive to the proper administration of justice. Moreover, an additional obstacle is here presented. The § 6 issue was not raised or argued in any way upon the appeal resulting in our prior decision. Our Rule 11(b), in common with generally prevailing appellate rules, requires a concise statement of points relied upon for reversal. Questions not raised, briefed nor argued will ordinarily be given no consideration by an appellate court. Trailmobile Co. v. Whirls, 331 U.S. 40, 50, 67 S.Ct. 982, 91 L.Ed. 1328; Pacific States Box & Basket Co. v. White, 296 U.S. 176, 186, 56 S.Ct. 159, 80 L.Ed. 138; Fleming v. Munsingwear, 8 Cir., 162 F.2d 125, 127; Anderson v. Federal Cartridge Corp., 8 Cir., 156 F.2d 681, 683; Cohen v. United States, 8 Cir., 142 F.2d 861, 863; 5 Am.Jur.2d, Appeal and Error § 648. See United Mine Workers of America v. Gibbs, supra, n. 29, pp. 737-738, 86 S.Ct. 1130, 16" }, { "docid": "11316990", "title": "", "text": "neither enclosed nor improved; and that appellant had not refused “to leave the same when requested”. Appellee had been occupying and operating over this land since 1937 by virtue of its easement of right of way granted by the City. A railroad right of way has the attributes of a fee, including perpetuity and exclusive use and possession. Midland Valley R. Co. v. Jarvis, 8 Cir., 1928, 29 F. 2d 539, 61 A.L.R. 1064 and the many cases cited therein. The ownership of appellee under the easement of right of way is sufficient to bring it within the terms of the ordinance. Also, grading of a right of way constitutes an improvement of real estate. Baetjer v. Garzot, 1 Cir., 1943, 136 F.2d 453. Thus appel-lee comes within the purview of the ordinance. Appellant’s argument that he had not refused to leave the premises when requested is also rejected. The two clauses of the first complete sentence of the ordinance provide for two separate and distinct offenses, namely, unlawful entry and refusal to leave when requested. The clauses are separated by the word “or”. The offense contained in the first clause is completed with the unlawful entry and there need be no request to leave. Appellant also argues that the charge was erroneous in that it failed to include the element of criminal intent, and further, that under the law of Missouri, only the Juvenile Court has authority to find a minor under the age of 17 years guilty of such an offense. This was a civil, not a criminal action, and the charge was given to allow the jury to find, not whether appellant was guilty of a crime, but whether there was probable cause for his arrest. As the court stated, “If there was probable cause, the arrest was legal.” A finding of probable cause might also incidentally show the commission of a misdemeanor but that was not the main purpose of the charge. Criminal intent had no place in the court’s charge to the jury in this case and was properly excluded. For the same reason, Missouri" }, { "docid": "11316984", "title": "", "text": "president of said police commissions of the said cities, under pain of being guilty of a misdemeanor (7712).” Section 84.330 RSMo 1949, V.A.M.S., further provides: “The members of the police force of the cities covered by sections 84.010 to 84.340, organized and appointed by the police commissioners of said cities, are hereby declared to be officers of the said cities, under the charter and ordinances thereof, and also to be officers of the state of Missouri, and shall be so deemed and taken in all courts having jurisdiction of offenses against the laws of this state or the ordinances of said cities (7711).” The trial court construed these sections to mean that this private watchman, licensed and appointed by the Board of Police Commissioners, had the power to make the arrest on defendant’s right-of-way. Appellant, on the other hand, argues that Section 84.340 was enacted only to give the Board of Police Commissioners means by which to regulate the activities of private watchmen and that the appointment of members of the police force under Section 84.330 does not contemplate nor include private watchmen. Further, that Section 84.-100 RSMo 1949, V.A.M.S., limits the number of policemen for the city of St. Louis and does not include private watchmen. And finally, that the sole purpose of the license granted under Section 84.-340 is to clothe the private watchman with immunity from arrest for carrying a gun. In the absence of controlling authority on this point, we must decline to hold that the charge given by the court below was an erroneous statement of the law. As this court has said many times, “The considered opinion of a trial judge as to a question of local law may properly be accorded great weight by this court. It will not adopt a view contrary to that of the trial judge unless convinced of error. * * * All that this court reasonably can be expected to do in reviewing cases governed by state law is to see that the determination of the trial court is not induced by a clear misconception or misapplication of" }, { "docid": "23007142", "title": "", "text": "principles of res judicata, have been conclusive on Chase’s right to the allotment, despite the fact that the United States had a good legal defense which it neglected to set up. But that was not what happened. Cases like Rhodes v. Commissioner, 4 Cir., 111 F.2d 53, and Commissioner v. Richter, 3 Cir., 114 F.2d 452, certiorari granted, November 18, 1940, 61 S.Ct. 172, 85 L.Ed.-, cited by the taxpayer, are clearly distinguishable. They rest on the proposition that an appellate court must not reverse a judgment or decree below upon a ground not presented to the lower court or considered by it. Whether or not this proposition is universally true (cf. Helvering v. Hormel, 8 Cir., 111 F.2d 1, certiorari granted, October 14, 1940, 61 S.Ct. 35, 85 L.Ed. -), it has no application here, for in the cases at bar the contention that appellees were taxable under Section 213 was presented to the court below, and that court, in rendering the judgments now appealed from, erroneously declined, as we think, to consider such contention on its merits. But the outcome would be the same, even if our mandate on previous appeal may be interpreted as a direction to the District Court to give judgments for the taxpayers provided they establish the facts alleged in their declarations. Such an interpretation would be based on the argument that in holding that the demurrers to the declarations should not have been sustained, we necessarily decided (whether we realized it or -not) that the declarations stated good causes of action notwithstanding anything in Section 219, Section 213, or any other section of the Revenue Act. All this comes to is that our previous decision established as the law of the case that Section 213 does not defeat the claims for refund; But the Circuit Court of Appeals on second appeal certainly would not follow its earlier law of the case when there has intervened between the two appeals a controlling opinion of the Supreme Court. Luminous Unit Co. v. Freeman-Sweet Co., 7 Cir., 3 F.2d 577, 580; Maryland Casualty Co. v. City" }, { "docid": "22456203", "title": "", "text": "F.R.D. 598; Adamowicz v. Iwanicki, 286 Mass. 453, 190 N.E. 711. The defendant neither pleaded nor brought in issue in the trial court the question of laches. He asserts, however, that the point has been properly raised for review on appeal. Notwithstanding his contentions to the contrary, we can find no evidence in the record or in the proceedings below of any assertion of this defense. The record unquestionably discloses considerable deláy by the plaintiff in commencing her action after learning of the defendant’s • intention to plead the statute of limitations. But there is nothing to show to what such delay was attributable. “If appellant desired to rely upon this ground, it should have presented and preserved in the record evidence justifying the conclusion that culpable delay was attributable to appellee.” Vulcan Mfg. Co. v. Maytag Co., 8 Cir., 1934, 73 F.2d 136, 141, 142. The defendant had ample opportunity of which he did not see fit to avail himself, to amend his answer and include the defense of laches. F.R.C.P. Rule 15(a) (b) (d). The question of laches not having been presented in any form to the trial court can not now be raised for the first time on appeal. Jackson v. Denver Producing & Refining Co., 10 Cir., 1938, 96 F.2d 457; Ashton v. Glaze, 9 Cir., 1938, 95 F.2d 427, 429. It is the general rule that courts of review will not consider questions which have not been raised and tried in the trial court. LeTulle v. Scofield, 1940, 308 U.S. 415, 421, 60 S.Ct. 313, 84 L.Ed. 355; Kortz v. Guardian Life Insurance Co., 10 Cir., 1944, 144 F.2d 676, 679, certiorari denied 323 U.S. 728, 65 S.Ct. 63. Occasionally appellate courts have considered questions not raised in the.trial court in order to prevent a miscarriage of justice. See Hormel v. Helvering, 1941, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037; Sulzbacher v. Continental Casualty Co., 8 Cir., 88 F.2d 122, 124; Goodcell v. Graham, 9 Cir., 1929, 35 F.2d 587. However, this exception is confined to situations where evidence has been newly discovered" }, { "docid": "224657", "title": "", "text": "In Sisco v. McNutt, 8 Cir., 209 F.2d 550, 553, we squarely held that § 6 did not deprive the district court of jurisdiction to try the action. We are still of the view that § 6 is not a jurisdictional statute. Here, as in Sisco, the § 6 issue was not raised in the trial court. We there held that the § 6 issue, raised for the first time upon appeal, could be given no consideration, stating: “It is only in exceptional cases that questions of law not presented to or passed upon by the trial court will be reviewed. Duignan v. United States, 274 U.S. 195, 200, 47 S.Ct. 566, 71 L.Ed. 996 and cases cited; Trapp v. Metropolitan Life Ins. Co., 8 Cir., 70 F.2d 976, 981; Helvering v. Hormel, 8 Cir., 111 F.2d 1, 5, affirmed 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037. The general and almost invariable rule is that questions not called to the attention of or ruled upon by a trial court will not be reviewed on appeal. Goldie v. Cox, 8 Cir., 130 F.2d 695, 715; Zuckerman v. McCulley, 8 Cir., 170 F.2d 1015, 1018; Hoyt v. Clancey, 8 Cir., 180 F.2d 152, 154; Barnard v. Wabash Railroad Co., 8 Cir., 208 F.2d 489. It is safe to say that this rule should be adhered to except ‘where the obvious result would be a plain miscarriage of justice.’ Hormel v. Helvering, 312 U.S. 552, 558, 61 S.Ct. 719, 772, 85 L.Ed. 1037. The application of the rule in this case will not produce a plain miscarriage of justice. A departure from the rule would not be justified. The defendant had his full day in court. Having made no objections to the legal theory upon which the issue of his liability was submitted to the jury, either by asking for instructions or taking exceptions to the instructions given, he is in no position to assert that the District Court committed prejudicial error in not submitting the case upon a different theory.” 209 F.2d 550, 553-554. To like effect, see Stanley v." }, { "docid": "11316983", "title": "", "text": "commission.” Appellant contends that this was an erroneous statement of the law and that, under the law of Missouri, the authority of a private watchman to make an arrest is equal to, but no greater than, that of private citizens generally. Admittedly there is no state statute specifically providing that private watchmen shall have the same power to arrest as police officers and other law enforcement officials. Nor have we been able to find a court decision so holding. Neither is there controlling decision that the duly licensed watchman does not have such power. The trial court’s charge was based upon its interpretation of two sections of the Missouri statute. Section 84.340 RSMo 1949, V.A.M.S., provides: “The police commissioner of the said cities shall have power to regulate and license all private watchmen, private detectives and private policemen, serving or acting as such in said cities, and no person shall act as such private watchman, private detective or private policeman in said cities without first having obtained the written license of the president or acting president of said police commissions of the said cities, under pain of being guilty of a misdemeanor (7712).” Section 84.330 RSMo 1949, V.A.M.S., further provides: “The members of the police force of the cities covered by sections 84.010 to 84.340, organized and appointed by the police commissioners of said cities, are hereby declared to be officers of the said cities, under the charter and ordinances thereof, and also to be officers of the state of Missouri, and shall be so deemed and taken in all courts having jurisdiction of offenses against the laws of this state or the ordinances of said cities (7711).” The trial court construed these sections to mean that this private watchman, licensed and appointed by the Board of Police Commissioners, had the power to make the arrest on defendant’s right-of-way. Appellant, on the other hand, argues that Section 84.340 was enacted only to give the Board of Police Commissioners means by which to regulate the activities of private watchmen and that the appointment of members of the police force under Section" }, { "docid": "5200514", "title": "", "text": "EDMONDSON, Circuit Judge: In this Section 1983 case, four homeless plaintiffs challenge the constitutionality of two ordinances in the City Code of St. Petersburg, Florida (the “City”) and of the City’s enforcement of the ordinances. One ordinance, Section 20-30 (or, the “trespass ordinance”), authorizes certain city agents to issue a temporary trespass warning for specific city land — in effect, an exclusion from the property — on which the agent determined that the warning recipient had “violate[d]” city or state law. The other ordinance, Section 8-321 (or, the “storage ordinance”), prohibits storage of personal property on city land such as parks and rights-of-way. The district court dismissed all of Plaintiffs’ claims; we affirm the district court’s rulings, except we vacate part of the district court’s ruling about the trespass ordinance. Plaintiffs have stated claims on the issues of procedural due process under the United States Constitution and on their right to intrastate travel under the Florida Constitution. I. This case involves a complaint against the city of St. Petersburg, Florida, by four homeless residents: Anthony Catron, Raymond Young, Jo Anne Reynolds, and William Shumate (“Plaintiffs”). Plaintiffs contend that two city ordinances, Sections 20-30 and 8-321, and the City’s manner of enforcement for these ordinances, violate Plaintiffs’ rights under the United States and Florida constitutions. The City has cited, arrested, or confiscated property from each of Plaintiffs for violating the trespass ordinance, the storage ordinance, or both. Plaintiffs filed suit in district court seeking declaratory and injunctive relief pursuant to 42 U.S.C. § 1983. The district court dismissed with prejudice Plaintiffs’ amended complaint. On appeal, Plaintiffs argue that the trespass ordinance — both on its face and in practice — violates the Due Process Clause of the Fourteenth Amendment, the First Amendment overbreadth doctrine, and the right to intrastate travel under the Florida Constitution. Plaintiffs argue that the storage ordinance is void for vagueness under the Due Process Clause. II. We review de novo a district court’s dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). Redland Co., Inc. v. Bank of Am. Corp., 568 F.3d 1232, 1234 (11th Cir.2009). A" } ]

[ { "docid": "22061573", "title": "", "text": "NOONAN, Circuit Judge: The C.E. Pope Equity Trust brought a complaint whose signature was as follows: C.E. POPE EQUITY TRUST By: AMERICAN CONSTITUTIONAL & CIVIL RIGHTS UNION, Trustee By: - Richard L. Stradley, Trustee The J.A. Shadwick Business Trust brought a complaint whose signature read as follows: J.A. SHADWICK BUSINESS TRUST By: AMERICAN CONSTITUTIONAL & CIVIL RIGHTS UNION, Trustee By: - Richard L. Stradley, Trustee The district court dismissed the complaint in C.E. Pope without prejudice and granted the defendants’ motion to strike the complaint in Shadwick. The issue in both cases is the same and they have been consolidated for argument and decision here. We affirm the district court. ANALYSIS The decisions of the district court were interlocutory but appealable, falling within the exception for collateral orders which conclusively determine the disputed question; resolve an important issue completely separate from the merits of the action; and are effectively unreviewable on appeal. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); see Kuster v. Block, 773 F.2d 1048 (9th Cir.1985). The Judiciary Act of 1789, § 35, 1 Stat. 73, 92 (1789) provided that “in all the courts of the United States, the parties may plead and manage their own causes personally ...” This same language is now found in 28 U.S.C. § 1654 which reads: In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein. The specific question raised by the claim to the right of self-representation is whether one seeking to represent himself pro se is a person who by substantive law has the right sought to be enforced. Put differently, is Stradley, in conducting the litigation, the real party in interest? See Heiskell v. Mozie, 82 F.2d 861, 863 (D.C.Cir.1936). It is clear that he is not. Stradley appeared, not on his own behalf, but rather as trustee of the American Constitutional and Civil Rights Union, which itself is alleged to be the trustee" } ]

[ { "docid": "13804386", "title": "", "text": "Keith v. Scruggs, 507 F.Supp. 968, 970 (S.D.N.Y.1981); 13B CHARLES A. WRIGHT, Arthur R. Miller & Edward H. Cooper, Federal PRACTICE and Prooedure § 3582 (1985). Plaintiff has made no allegations of copyright infringement in this case, and the Court therefore does not have jurisdiction pursuant to 28 U.S.C. § 1338. In addition, plaintiffs request for declaratory judgment does not provide jurisdiction for the action because it is simply a request for declaratory judgment concerning the ownership of a copyright rather than a request for declaratory judgment pertaining to the copyright’s validity or allegations regarding its infringement. See Muse v. Mellin, 212 F.Supp. 315, 318 (S.D.N.Y.), aff'd, 339 F.2d 888 (2d Cir.1964) (“This is simply a declaratory judgment action between one [copyright] assignee against another assignee of the same one-third interest to determine the [copyright] ownership of the elusive one-third. Of such actions, the federal courts lack jurisdiction.”). Plaintiff also alleges diversity jurisdiction, but he has failed to set out the requisites for invocation of this Court’s diversity jurisdiction. He has failed even to allege an amount in controversy as required by 28 U.S.C. § 1332. For all of these reasons, the complaint in this case will be dismissed, but without prejudice, pursuant to Rule 12(b)(1) and 12(b)(2) of the Federal Rules of Civil Procedure. SO ORDERED. ORDER Upon consideration of the motions filed by the parties, and for the reasons stated in the Court’s Memorandum Opinion issued this same day, it is hereby ORDERED that the case is dismissed without prejudice pursuant to Rule 12(b)(1) and 12(b)(2) of the Federal Rules of Civil Procedure; and it is FURTHER ORDERED that defendant’s motion to quash service is DENIED as moot. SO ORDERED. . A corporation cannot represent itself and cannot appear pro se. It must be represented by counsel or it will be treated as not having appeared at all, and default judgment may be entered against it. See Rowland v. California Men’s Colony, 506 U.S. 194, 201-02, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993) (corporation may only appear in federal court through licensed counsel). If there is no jurisdiction" }, { "docid": "22056334", "title": "", "text": "that the district court erred. We review a district court’s dismissal for failure to comply with a court order under Rule 41(b), Fed.R.Civ.P. for abuse of discretion. Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.1992). However, the district court’s determination that a guardian ad litem cannot represent a child without retaining a lawyer is a question of law, and questions of law are reviewed de novo. See United States v. Rodriguez-Sanchez, 28 F.3d 1488, 1494 (9th Cir.1994). While we have not addressed the question of whether a guardian ad litem can represent a child without retaining a lawyer, all other circuit courts addressing the issue have held that the guardian or parent cannot bring a lawsuit on behalf of a minor in federal court without retaining a lawyer. See, e.g., Osei-Afriyie v. Medical College, 937 F.2d 876, 882-83 (3d Cir.1991); Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61-62 (2d Cir.1990); Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir.l986)(per curiam). The Third Circuit explained the rationale: A litigant in federal court has a right to act as his or her own counsel. See 28 U.S.C. § 1654 (1982)____ However, we agree with Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir.1986) (per curiam), that a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child. The choice to appear pro se is not a true choice for minors who under state law, see Fed.R.Civ.P. 1(b), cannot determine their own legal actions. There is thus no individual choice to proceed pro se for courts to respect, and the sole policy at stake concerns the exclusion of non-licensed persons to appear as attorneys on behalf of others. It goes without saying that it is not in the interest of minors or incompetents that they be represented by non-attorneys. Where they have claims that require adjudication, they are entitled to trained legal assistance so their rights may be fully protected. Osei-Afriyie, 937 F.2d at 882-83 (quoting Cheung, 906 F.2d at 61). We agree with this reasoning. In addition, we are" }, { "docid": "20453208", "title": "", "text": "The Commissioner did not challenge Ms. Adams’s pro se representation of her minor son in the district court and does not challenge it in this court. But before reaching the merits of this appeal, we must satisfy ourselves that Ms. Adams has standing — which requires us to decide whether a non-attorney parent may proceed pro se on behalf of her minor child to challenge in federal court the administrative denial of SSI benefits. See Wilderness Soc’y v. Kane Cnty., Utah, 632 F.3d 1162, 1168 (10th Cir.2011) (en banc) (“The prudential standing doctrine encompasses various limitations, including the general prohibition on a litigant’s raising another person’s legal rights. The plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.”) (citation omitted) (brackets omitted) (internal quotation marks omitted); see also Machadio v. Apfel, 276 F.3d 103, 105-06 (2d Cir.2002) (considering, sua sponte, non-attorney parent’s representation of minor child); Osei-Afriyie ex rel. Osei-Afriyie v. Med. Coll. of Penn., 937 F.2d 876, 883 (3d Cir.1991) (observing that parties’ failure to bring to the district court’s attention the absence of counsel to represent minor children did not waive the issue; “the parent cannot waive this right”). The right to proceed pro se in a civil action in federal court is guaranteed by 28 U.S.C. § 1654. “[B]ecause pro se means to appear for one’s self, [however,] a person may not appear on another person’s behalf in the other’s cause[;]” rather, a “person must be litigating an interest personal to him.” Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir.1998). “Thus, the threshold question becomes whether a given matter is plaintiffs own case or one that belongs to another.” Id. In this circuit, we have held “that under Fed.R.Civ.P. 17(c) and 28 U.S.C. § 1654, a minor child cannot bring suit through a parent acting as next friend if the parent is not represented by an attorney.” Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir.1986) (per curiam); see also Mann v. Boatright, 477 F.3d 1140, 1150 (10th Cir.2007)" }, { "docid": "4019840", "title": "", "text": "defendants’ Joint Motion to Dismiss is granted in part to the extent that it alleges venue is improper in this District and requests that this matter be transferred to the Middle District of Florida. Since the Court need not reach the merits of the defendants’ alternative arguments for dismissal under Federal Rule of Civil Procedure 12(b)(2) and 12(b)(6) in light of the finding that transfer is appropriate, those portions of the defendants’ joint motion are denied without prejudice so that the defendants may re-file, if appropriate, after the case is transferred. An appropriate Order accompanies this Memorandum Opinion. . Defendant FratHouse has yet to appear in this matter. Although Defendant FratHouse purported to file a Motion to Dismiss on April 10, 2013, see ECF No. 14, the motion was stricken because Defendant FratHouse failed to appear by counsel and, as a limited liability corporation, is not entitled to appear pro se. See Rowland v. Cal. Men's Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 201-02, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993). Nevertheless, the plaintiff has not sought an • entry of default against Defendant FratHouse as a result of its failure to appear. Consequently, since venue is improper in this district as to all the defendants, see infra, the case against Defendant FratHouse will be transferred in conjunction with the transfer by motion of the case against Defendants Bivins and Goins. See Cottman Transmission Sys., Inc. v. Martino, 36 F.3d 291, 292 (3d Cir.1994) (transferring entire trademark infringement action, including action against corporation that failed to appear by counsel, “so that the entire action may be transferred to the same district.”). . The Court denied, without prejudice, the plaintiff's Motion for Entry of Default for failing first to obtain an entry of default from the Clerk of the Court, as required by Federal Rule of Civil Procedure 55(a). See Mem. Order at 6, ECF No. 36. .In this same order, the Court struck the plaintiffs Motion for Preliminary Injunction as improperly filed as one of over ten attachments to the Complaint, and ordered Defendant FratHouse to appear by" }, { "docid": "22565958", "title": "", "text": "conform with trial court’s actual findings, where party did not move to revise order below). . As a limited liability company, Lavabit likely should not have been permitted to proceed pro se at all. \"It has been the law for the better part of two centuries, for example, that a corporation may appear in the federal courts only through licensed counsel. As the courts have recognized, the rationale for that rule applies equally to all artificial entities. Thus, save in a few aberrant cases, the lower courts have uniformly held that 28 U.S.C. § 1654, providing that 'parties may plead and conduct their own cases personally or by counsel,’ does not allow corporations, partnerships, or associations to appear in federal court otherwise than through a licensed attorney.” Rowland v. Cal. Men's Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 202, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993) (footnote omitted); see also, e.g., United States v. Hagerman, 545 F.3d 579, 581-82 (7th Cir.2008) (holding that LLCs may not proceed pro se); United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 92 (2d Cir.2008) (explaining that lay persons cannot represent corporations, partnerships, or limited liability companies). . Litigating this case did not evidently present any particular financial hardship, as Lava-bit and Levison have never claimed a lack of funds as a reason for their sometimes-pro-se status. . For example, in the more historically common use of a pen/trap device on a landline telephone, the only information collected would be information such as the telephone numbers of incoming and outgoing calls." }, { "docid": "22056338", "title": "", "text": "dismissed the complaint without prejudice, thereby giving Johns further opportunity to secure an attorney at some later time within the limitations period and bring the action on behalf of his son. Casey should not be prejudiced by his father’s failure to comply with the court order. The court in Cheung reached the same conclusion, stating that if on remand the parent “does not retain counsel and if the district court declines to appoint counsel, the complaint should be dismissed without prejudice.” Cheung, 906 F.2d at 62. Thus, the complaint should have been dismissed without prejudice as to Johns in his capacity as guardian ad litem. III. Casey and Johns allege that the district court erred in dismissing the complaint with prejudice as to Casey. We review questions of standing de novo. Barrus v. Sylvania, 55 F.3d 468, 469 (9th Cir.1995). An individual’s capacity to sue is determined by the law of the individual’s domicile. Fed.R.Civ.P. 17(b). Under California law, an individual under the age of eighteen is a minor. Cal.Fam.Code § 6502. A minor may bring suit as long as a guardian conducts the proceedings. Cal.Fam.Code § 6601. Because Casey is a minor, he lacked the capacity to sue on his own. Ac cordingly, the district court did not err in dismissing the complaint as to Casey. However, the complaint should have been dismissed without prejudice rather than with prejudice so that Casey may bring this action on his own when he reaches the age of majority. See Osei-Afriyie, 937 F.2d at 883. In Osei-Afriyie, the Third Circuit held that a parent who is a non-lawyer cannot bring an action pro se on behalf of his children. The court remanded the case, stating: On remand, one of several scenarios may occur. Osei-Afriyie may decide to secure a lawyer and proceed once again with his children’s claims. Osei-Afriyie may determine not to pursue the litigation, in which event the children’s claims can be dismissed without prejudice, to accrue for purposes of the relevant statutes of limitations when the children reach eighteen years of age, or sooner if they become emancipated minors." }, { "docid": "4019839", "title": "", "text": "of personal jurisdiction, improper venue and statute of limitations bars.” Sinclair v. Kleindienst, 711 F.2d 291, 293-94 (D.C.Cir.1983); see also Gonzalez v. Holder, 763 F.Supp.2d 145, 153 (D.D.C.2011). In the instant matter, the defendants concede that venue would be proper in the Middle District of Florida since “all Defendants reside [in] the Middle District of Florida” and because “a substantial part of events giving rise to the action occurred in the Middle District of Florida.” Defs.’ Mem. at 13. The defendants would not be prejudiced by a transfer “in light of [their] substantial connections to the district and the fact that the alleged [wrongful acts] occurred” in that district. O’Keefe v. Blue & Gold Fleet, L.P., 634 F.Supp.2d 284, 289 (E.D.N.Y.2009). Thus, since the claim “could have been brought” in the Middle District of Florida under 28 U.S.C. §§ 1391(b)(1) or (b)(2), the Court finds it is in the interest of justice to transfer this case, pursuant to 28 U.S.C. § 1406(a), to the Middle District of Florida. IV. CONCLUSION For the foregoing reasons, the defendants’ Joint Motion to Dismiss is granted in part to the extent that it alleges venue is improper in this District and requests that this matter be transferred to the Middle District of Florida. Since the Court need not reach the merits of the defendants’ alternative arguments for dismissal under Federal Rule of Civil Procedure 12(b)(2) and 12(b)(6) in light of the finding that transfer is appropriate, those portions of the defendants’ joint motion are denied without prejudice so that the defendants may re-file, if appropriate, after the case is transferred. An appropriate Order accompanies this Memorandum Opinion. . Defendant FratHouse has yet to appear in this matter. Although Defendant FratHouse purported to file a Motion to Dismiss on April 10, 2013, see ECF No. 14, the motion was stricken because Defendant FratHouse failed to appear by counsel and, as a limited liability corporation, is not entitled to appear pro se. See Rowland v. Cal. Men's Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 201-02, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993). Nevertheless, the" }, { "docid": "23488514", "title": "", "text": "hear this appeal. We review for abuse of discretion a district court’s dismissal for failure to prosecute pursuant to Rule 41(b). Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 341 (3d Cir.1982). However, to the extent that the district court’s dismissal of Francis’s claims was based upon its construction of the IDEA, we will exercise plenary review. See In re TMI, 67 F.3d 1119, 1123 (3d Cir.1995), cert. denied sub nom Metropolitan Edison Co. v. Dodson, 517 U.S. 1163, 116 S.Ct. 1560, 134 L.Ed.2d 660 (1996). III. Discussion A. The Right to Proceed Pro Se It has long been recognized that a litigant in federal court has the right to proceed as his or her own counsel. 28 U.S.C. § 1654 (1994) (“In all courts of the United States the parties may plead and conduct their own cases personally or by counsel ____”)• In contrast, under Rule 17 of the Federal Rules of Civil Procedure, minors are precluded from determining their own legal actions. Rather, under Rule 17(c), a representative or guardian “may sue or defend on behalf of the infant.” It is, however, well-established in this Circuit that the right to proceed pro se in federal court does not give non-lawyer parents the right to represent their children in proceedings before a federal court. See Osei-Afriyie v. Medical College of Pa., 937 F.2d 876, 883 (3d Cir.1991). Other circuits follow this rule as well. See Devine, 121 F.3d at 581-82; Cheung v. Youth Orchestra Found., 906 F.2d 59, 61 (2d Cir.1990); Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir.1986); Johns v. County of San Diego, 114 F.3d 874, 876-77 (9th Cir.1997); Hickey v. Wellesley Sch. Comm., 14 F.3d 44, 1993 WL 527964, at *2 (1st Cir. Dec. 21, 1993) (unpublished disposition). Our leading case regarding the ability of parents who are not attorneys to represent their children in federal court actions is Osei-Afriyie. Francis Osei-Afriyie brought, on behalf of himself and his two daughters, a number of tort claims relating to the treatment of his daughters for malaria. The case came before this court after Osei-Afriyie, a non-attorney," }, { "docid": "4568080", "title": "", "text": "possible summary action, see 3d Cir. LAR 27.4 (2010); 3d Cir. I.O.P. 10.6, and on Faison Williams’s motions discussed below. II. This appeal raises the threshold issues of whether Faison Williams or Louis Faison, Sr., or both, are proper parties on appeal and whether this appeal should proceed in the absence of Louis Faison, Sr.’s signature on the notice of appeal or representation by counsel. We need not resolve these issues, however, because they stem in part from an error that Faison Williams’s timely notice of appeal gives us jurisdiction under 28 U.S.C. § 1291 to correct. See Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 880-81 (3d Cir.1991). Parties may proceed in federal court only pro se or through counsel. See 28 U.S.C. § 1654. Faison Williams’s power of attorney for her father may confer certain decision-making authority under state law, but it does not permit her to represent him pro se in federal court. See Osei-Afriyie, 937 F.2d at 882-83 (holding that parent and guardian could not litigate pro se on behalf of his children, and noting that “ ‘[i]t goes without saying that it is not in the interest of minors or incompetents that they be represented by non-attorneys’ ”) (citation omitted); see also Estate of Keatinge v. Biddle, 316 F.3d 7, 14 (1st Cir.2002) (“[T]he holder of a power of attorney is not authorized to appear pro se on behalf of the grantor.”); Powerserve Int'l, Inc. v. Lavi, 239 F.3d 508, 514 (2d Cir.2001) (“attorney-in-fact” for daughter not permitted to litigate pro se on her behalf). Thus, the District Court should not have allowed Faison Williams to represent her father pro se after permitting her counsel to withdraw. The District Court also should not have reached the merits of her father’s claim in the absence of proper representation. See Osei-Afriyie, 937 F.2d at 883; cf. Gardner v. Parson, 874 F.2d 131, 141 (3d Cir.1989) (reversing dismissal of incompetent plaintiffs claim and explaining that, “[bjecause [she] was without a representative when the court dismissed her claims, and was otherwise unprotected, the court was without authority to" }, { "docid": "22056332", "title": "", "text": "OPINION THOMAS, Circuit Judge. Hans Johns (“Johns”), his minor son Casey Johns (“Casey”) and David Funderburk (“Funderburk”) appeal pro se the district court’s dismissal with prejudice of their 42 U.S.C. § 1983 complaint alleging that their constitutional rights were violated when the defendants stopped, towed, and stored a car driven by Casey. We affirm the dismissal with prejudice as to Funderburk. We agree that the dismissal of Johns and Casey was appropriate. However, because the dismissal should not have been made with prejudice, we remand so that the district court may enter the dismissal without prejudice. I. The district court dismissed the complaint with prejudice as to Funderburk because a general power of attorney did not give him the right to assert Hennessey’s constitutional claims. Funderburk argues that the district court erred in dismissing the complaint with prejudice as to him. We review questions of standing de novo. Barus v. Sylvania, 55 F.3d 468, 469 (9th Cir.1995). Funderburk attempted to assert a due process claim on behalf of Hennessey, the owner of the car, based on the fact that Hennessey had executed a general power of attorney in favor of Funderburk. However, constitutional claims are personal and cannot be asserted vicariously. United States v. Mitchell, 915 F.2d 521, 526 n. 8 (9th Cir.1990). While a non-attorney may appear pro se on his own behalf, “[h]e has no authority to appear as an attorney for others than himself.” C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir.1987). Accordingly, the district court did not err in dismissing the complaint with prejudice as to Funderburk. II. Johns sued pro se as the “natural biological father of Casey Johns, a minor.” In order to protect Casey’s rights, the district court sua sponte appointed Johns as Casey’s guardian ad litem under Rule 17(c), Fed.R.Civ.P. on the condition that Johns secure counsel within thirty days of the court’s order or the complaint would be dismissed with prejudice. Johns failed to comply with the district court’s order within thirty days, and the court dismissed the complaint as to Johns with prejudice. Johns argues" }, { "docid": "22056339", "title": "", "text": "bring suit as long as a guardian conducts the proceedings. Cal.Fam.Code § 6601. Because Casey is a minor, he lacked the capacity to sue on his own. Ac cordingly, the district court did not err in dismissing the complaint as to Casey. However, the complaint should have been dismissed without prejudice rather than with prejudice so that Casey may bring this action on his own when he reaches the age of majority. See Osei-Afriyie, 937 F.2d at 883. In Osei-Afriyie, the Third Circuit held that a parent who is a non-lawyer cannot bring an action pro se on behalf of his children. The court remanded the case, stating: On remand, one of several scenarios may occur. Osei-Afriyie may decide to secure a lawyer and proceed once again with his children’s claims. Osei-Afriyie may determine not to pursue the litigation, in which event the children’s claims can be dismissed without prejudice, to accrue for purposes of the relevant statutes of limitations when the children reach eighteen years of age, or sooner if they become emancipated minors. Id. (emphasis added) We agree with Osei-Afriyie. If Johns decides not to secure a lawyer, then Casey should be given the opportunity to pursue his cause of action when he reaches eighteen. Rule 17(c), Fed.R.Civ.P. states that, “[t]he court shall appoint a guardian ad litem for an infant ... not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant____” Because the goal is to protect the rights of infants, the complaint should not have been dismissed with prejudice as to Casey. CONCLUSION We affirm the dismissal of the complaint with prejudice as to Funderburk. We affirm the dismissal of the complaint to both Johns and Casey, but direct the district court to vacate the dismissal with prejudice and enter an order dismissing the case without prejudice. . The County of San Diego and the City of Vista ask the panel to affirm the district court on the ground that the Complaint fails to state a claim upon which relief can be granted. They" }, { "docid": "5467138", "title": "", "text": "relief can be granted by the court.’ ” Id. (citing Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C.Cir. 1981)). Moreover, the Court need not await a formal motion under Rule 12(b)(6), but may, on its own initiative, dismiss a complaint for failure to state a claim. See Best v. Kelly, 39 F.3d 328, 331 (D.C.Cir. 1994) (quoting Baker v. Director, United States Parole Comm’n, 916 F.2d 725, 726 (D.C.Cir.1990)) (per curiam); 5B ChaRles Alan Wright and Arthur R. MilleR, Federal Practice and Procedure § 1357 at 409 n. 4 (3d ed.2004). B. YoWorld is Unrepresented The Court agrees with defendants that YoWorld is an artificial entity rather than a natural person, and therefore must be represented by counsel to pursue claims in this Court. See Def. Mot. at 5-6. Regardless of the particular type of business association YoWorld might be, it is clear that any artificial entity, whether a corporation, partnership or association, cannot proceed in federal court without counsel. see Rowland v. California Men’s Colony, 506 U.S. 194, 202, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993) (only natural persons may appear pro se in federal court). Because YoWorld is not represented by counsel, the Court will dismiss all of YoWorld’s claims against all defendants, and address the claims as brought by pro se plaintiff Robert Prunté in his individual capacity. C. Motion to Dismiss for Failure to State a Claim 1. Counts I and II Mr. Prunté alleges direct and contributory copyright infringement in the first two counts of his amended complaint. See Am. Compl. ¶¶ 63, 122. To establish copyright infringement, a plaintiff must prove (1) “ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); see Sturdza v. United Arab Emirates, 281 F.3d 1287, 1295 (D.C.Cir.2002); Stenograph L.L.C. v. Bossard Assoc., Inc., 144 F.3d 96, 99 (D.C.Cir.1998). Defendants have moved to dismiss these claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim for" }, { "docid": "13804387", "title": "", "text": "an amount in controversy as required by 28 U.S.C. § 1332. For all of these reasons, the complaint in this case will be dismissed, but without prejudice, pursuant to Rule 12(b)(1) and 12(b)(2) of the Federal Rules of Civil Procedure. SO ORDERED. ORDER Upon consideration of the motions filed by the parties, and for the reasons stated in the Court’s Memorandum Opinion issued this same day, it is hereby ORDERED that the case is dismissed without prejudice pursuant to Rule 12(b)(1) and 12(b)(2) of the Federal Rules of Civil Procedure; and it is FURTHER ORDERED that defendant’s motion to quash service is DENIED as moot. SO ORDERED. . A corporation cannot represent itself and cannot appear pro se. It must be represented by counsel or it will be treated as not having appeared at all, and default judgment may be entered against it. See Rowland v. California Men’s Colony, 506 U.S. 194, 201-02, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993) (corporation may only appear in federal court through licensed counsel). If there is no jurisdiction over a corporation or if it has not been served properly, or course, the complaint against it may be dismissed sua sponte. See Rule 12(h)(3), Fed.R. Civ.P." }, { "docid": "22056333", "title": "", "text": "on the fact that Hennessey had executed a general power of attorney in favor of Funderburk. However, constitutional claims are personal and cannot be asserted vicariously. United States v. Mitchell, 915 F.2d 521, 526 n. 8 (9th Cir.1990). While a non-attorney may appear pro se on his own behalf, “[h]e has no authority to appear as an attorney for others than himself.” C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir.1987). Accordingly, the district court did not err in dismissing the complaint with prejudice as to Funderburk. II. Johns sued pro se as the “natural biological father of Casey Johns, a minor.” In order to protect Casey’s rights, the district court sua sponte appointed Johns as Casey’s guardian ad litem under Rule 17(c), Fed.R.Civ.P. on the condition that Johns secure counsel within thirty days of the court’s order or the complaint would be dismissed with prejudice. Johns failed to comply with the district court’s order within thirty days, and the court dismissed the complaint as to Johns with prejudice. Johns argues that the district court erred. We review a district court’s dismissal for failure to comply with a court order under Rule 41(b), Fed.R.Civ.P. for abuse of discretion. Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.1992). However, the district court’s determination that a guardian ad litem cannot represent a child without retaining a lawyer is a question of law, and questions of law are reviewed de novo. See United States v. Rodriguez-Sanchez, 28 F.3d 1488, 1494 (9th Cir.1994). While we have not addressed the question of whether a guardian ad litem can represent a child without retaining a lawyer, all other circuit courts addressing the issue have held that the guardian or parent cannot bring a lawsuit on behalf of a minor in federal court without retaining a lawyer. See, e.g., Osei-Afriyie v. Medical College, 937 F.2d 876, 882-83 (3d Cir.1991); Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61-62 (2d Cir.1990); Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir.l986)(per curiam). The Third Circuit explained the rationale: A litigant in federal" }, { "docid": "14047322", "title": "", "text": "will withdraw unless the obligation is fulfilled; [or] (5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client[.] . In support of its position that RZS could not proceed pro se, PDVSA relied on an unpublished Fourth Circuit opinion that adopted the Supreme Court's reasoning in Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993). See Allied Colloids, Inc. v. Jaddair, Inc., No. 96-2078, 1998 WL 112719, at *1 (4th Cir. Mar. 16, 1998). The Supreme Court in Rowland recognized that [i]t has been the law for the better part of two centuries ... that a corporation may appear in the federal courts only through licensed counsel. As the courts have recognized, the rationale for that rule applies equally to all artificial entities. Thus, save a few aberrant cases, the lower courts have uniformly held that 28 U.S.C. § 1654, providing that “parties may plead and conduct their own cases personally or by counsel,” does not allow corporations, partnerships, or associations to appear in federal court otherwise than through a licensed attorney. 506 U.S. at 201-02, 113 S.Ct. 716 (internal citations omitted). . The business form of RZS has been disputed in both the district court and on appeal. Although RZS now claims that it is a sole proprietorship owned by Deeb, it has not consistently represented itself as a sole proprietorship. In certain prior proceedings, RZS has claimed to be a sole proprietorship, while at other times it has claimed to be a partnership. Notably, it has been recognized that a sole proprietorship has no legal existence apart from its owner, and that an individual owner may represent his sole proprietorship in a pro se capacity. See Lattanzio v. COMTA, 481 F.3d 137, 140 (2d Cir.2007). If there is a material dispute concerning this issue on remand, we leave it to the district court. . Citations to \"J.A_\" refer to the Joint Appendix filed by the parties in this appeal. . On the day of the" }, { "docid": "6951292", "title": "", "text": "S.Ct. 1937. In short, like a motion to dismiss, a motion for judgment on the pleadings should not be granted if a party alleges facts which could, if established at trial, entitle her to relief. See Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir.2009). III. DISCUSSION A. Ms. Snyder cannot bring claims on BEHALF OF HER MINOR SON GIVEN HER PRO SE STATUS. In addition to filing this pro se suit against Defendant Officers to vindicate her own constitutional rights, Ms. Snyder states that she brings suit on behalf of her minor son, E.S. Am. Compl. ¶ 1; Pi’s Resp. Police Defs.’ Mot. Dismiss, ECF No. 48, at 1-4. However, a plaintiff acting in a pro se capacity cannot represent the interests of her minor child. The Third Circuit held in Osei-Afriyie v. Med. Coll. of Pa. that a non-lawyer parent does not have the ability to represent her children in place of an attorney in federal court. 937 F.2d 876, 883 (3d Cir.1991); accord Woodruff v. Hamilton Twp. Pub. Sch., No. 06-3815(NLH), 2007 WL 4556968, at *3 (D.N.J. Dec. 20, 2007), adopted by 2008 WL 4547192 (D.Del. Oct. 9, 2008) .(applying Osei-Afriyie in the context of a civil rights action); aff'd, Woodruff v. Hamilton Twp. Pub. Sch., 305 Fed.Appx. 833 (3d Cir. 2009). The court in Osei-Afriyie noted three options to remedy the situation: (1) the parent plaintiff could retain an attorney and bring claims on his and his children’s behalf; (2) the plaintiff could determine not to pursue the litigation, in which case the children’s claims would be dismissed without prejudice until they reached the age of eighteen or was emancipated; or (3) the district court in its discretion could appoint counsel pursuant to 28 U.S.C.A. § 1915(d), “if it sees particular merit to their claims and believes that the children otherwise would not be able to secure qualified legal representation and that they would be prejudiced by having to wait until they became old enough to sue on their own.” 937 F.2d at 883. As to the first option, the Court has already allotted ample" }, { "docid": "22584982", "title": "", "text": "be used in the inquest. However, the record indicates that Judge Wolle never held an evidentiary hearing, received detailed affidavits, or considered documentary evidence. Judge Wolle held a status conference on July 28, 1997, in which plaintiffs’ counsel appeared in person and Rosenstock appeared by-telephone from Florida. On July 31, 1997, an order from Judge Wolle urged the parties to continue settlement negotiations and imposed a deadline of August 4, 1997. Plaintiffs and Rosenstock then signed the stipulation of settlement, with Rosenstock acting on behalf of Briggs and himself. Judge Trager wrote that it is “well-settled” that a “ ‘corporation may appear in the federal courts only through licensed counsel.’ ” Grace XI, at 12 (quoting Rowland v. California Men’s Colony, 506 U.S. 194, 201-02, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993)). Judge Trager, citing Mullin-Johnson Co. v. Penn Mutual Life Insurance Co., 9 F.Supp. 175 (N.D.Cal.1934), explained that this rule “has been applied to dismiss any action or motion filed by a corporation purporting to act pro se.” Grace XI, at 12. He also found that “[a] corporation cannot execute a stipulation of settlement while appearing pro se in a federal court.” Id. at 13. Judge Trager is correct. This Court held in SEC v. Research Automation Corp., 521 F.2d 585 (2d Cir.1975), that “[i]t is settled law that a corporation may not appear in a lawsuit against it except through an attorney, and that, where a corporation repeatedly fails to appear by counsel, a default judgment may be entered against it pursuant to Rule 55, F[ed], R. Civ. P.” Id. at 589 (internal citation omitted); accord Jacobs v. Patent Enforcement Fund, Inc., 230 F.3d 565, 568 (2d Cir.2000). Further, this Court held in Eagle Associates v. Bank of Montreal, 926 F.2d 1305 (2d Cir.1991), that “we long have required corporations to appear through a special agent, the licensed attorney.” Id. at 1308. Plaintiffs attempt to invoke Schifrin v. Chenille Manufacturing Co., 117 F.2d 92 (2d Cir.1941), arguing that even if Briggs retained an attorney, this attorney would have “merely carried out an agreement” made by defendant Rosenstock. In" }, { "docid": "22337570", "title": "", "text": "of his or her child. The choice to appear pro se is not a true choice for minors who under state law, see Fed.R.Civ.P. 17(b), cannot determine their own legal actions. There is thus no individual choice to proceed pro se for courts to respect, and the sole policy at stake concerns the exclusion of non-licensed persons to appear as attorneys on behalf of others. It goes without saying that it is not in the interest of minors or incompetents that they be represented by non-attorneys. Where they have claims that require adjudication, they are entitled to trained legal assistance so their rights may be fully protected. Id. at 61 (citations omitted). As a result of its reasoning, the court remanded the appeal to the district court so that it could either appoint counsel under 28 U.S.C.A. § 1915(d) or dismiss the complaint without prejudice. The Tenth Circuit is in accord. See Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir.1986) (“We hold that under Fed.R.Civ.P. 17(c) and 28 U.S.C.A. § 1654, a minor child cannot bring suit through a parent acting as next friend if the parent is not represented by an attorney.”); see also Lawson v. Edwardsburg Public School, 751 F.Supp. 1257, 1258 (W.D.Mich.1990) (“While a litigant has the right to act as his or her own counsel, see 28 U.S.C. § 1654, a non-attorney parent is not permitted to represent the interests of his or her minor child.”). Here, no party has raised the issue of whether Osei-Afriyie could represent his children as a pro se litigant. The record shows that Osei-Afriyie did not want to retain an attorney because he did not want to share any recovery from the litigation. See App. at 64-65. In DuPont v. Southern Nat’l Bank of Houston, Tex., 771 F.2d 874, 882 (5th Cir.1985) (quoting Richardson v. Tyson, 110 Wis. 572, 578, 86 N.W. 250, 251 (1901)), cert. denied, 475 U.S. 1085, 106 S.Ct. 1467, 89 L.Ed.2d 723 (1986), the court wrote: As one court explained, “[T]he infant is always the ward of every court wherein his rights or property are" }, { "docid": "4568081", "title": "", "text": "of his children, and noting that “ ‘[i]t goes without saying that it is not in the interest of minors or incompetents that they be represented by non-attorneys’ ”) (citation omitted); see also Estate of Keatinge v. Biddle, 316 F.3d 7, 14 (1st Cir.2002) (“[T]he holder of a power of attorney is not authorized to appear pro se on behalf of the grantor.”); Powerserve Int'l, Inc. v. Lavi, 239 F.3d 508, 514 (2d Cir.2001) (“attorney-in-fact” for daughter not permitted to litigate pro se on her behalf). Thus, the District Court should not have allowed Faison Williams to represent her father pro se after permitting her counsel to withdraw. The District Court also should not have reached the merits of her father’s claim in the absence of proper representation. See Osei-Afriyie, 937 F.2d at 883; cf. Gardner v. Parson, 874 F.2d 131, 141 (3d Cir.1989) (reversing dismissal of incompetent plaintiffs claim and explaining that, “[bjecause [she] was without a representative when the court dismissed her claims, and was otherwise unprotected, the court was without authority to reach the merits of those claims”). For these reasons, we will vacate the District Court’s judgment and remand for further proceedings. We leave the appropriate steps on remand to the District Court’s discretion. Solely by way of example, however, the District Court may wish to consider revisiting counsel’s request to withdraw, appointing substitute counsel for Faison Williams, or requiring her to retain substitute counsel under penalty of dismissal of the action without prejudice to the merits of her father’s claim. Given our ruling that the District Court should not have reached the merits of that claim, we express no opinion on the merits ourselves. Faison Williams has also filed a motion seeking review of a Magistrate Judge’s recommendation in a second action that she purported to file on her father’s behalf, Faison Williams v. United States, M.D.Pa. Civ. No. 12-cv-00064. We decline to construe the motion as a notice of appeal from that action because we lack jurisdiction to review the Magistrate Judge’s recommendation directly. Objections to that recommendation must instead be filed in the" }, { "docid": "22565957", "title": "", "text": "v. Zayyad, 741 F.3d 452, 459 (4th Cir.2014) (“To preserve an argument on appeal, the [party] must object on the same basis below as he contends is error on appeal.”); Laber v. Harvey, 438 F.3d 404, 429 n. 24 (4th Cir.2006) (“These are different arguments entirely, and making the one does not preserve the other.”); United States v. Banisadr Bldg. Joint Venture, 65 F.3d 374, 379 (4th Cir.1995) (\"[A] theory not raised at trial cannot be raised on appeal.”). . We might characterize this argument as some type of undue burden challenge. But, on appeal, Lavabit does not raise any undue burden argument as to the Pen/Trap Order. Instead, it limits its burden arguments to the seizure warrant. . Similarly, if Lavabit believed that the district court mistakenly relied upon the Pen/ Trap Order in its August 1 Order, then it should have moved the district court to revise its order. See Segars. v. Atl. Coast Line R.R. Co., 286 F.2d 767, 770 (4th Cir.1961) (finding that party waived argument that written order did not conform with trial court’s actual findings, where party did not move to revise order below). . As a limited liability company, Lavabit likely should not have been permitted to proceed pro se at all. \"It has been the law for the better part of two centuries, for example, that a corporation may appear in the federal courts only through licensed counsel. As the courts have recognized, the rationale for that rule applies equally to all artificial entities. Thus, save in a few aberrant cases, the lower courts have uniformly held that 28 U.S.C. § 1654, providing that 'parties may plead and conduct their own cases personally or by counsel,’ does not allow corporations, partnerships, or associations to appear in federal court otherwise than through a licensed attorney.” Rowland v. Cal. Men's Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 202, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993) (footnote omitted); see also, e.g., United States v. Hagerman, 545 F.3d 579, 581-82 (7th Cir.2008) (holding that LLCs may not proceed pro se); United States ex rel." } ]

[ { "docid": "23473035", "title": "", "text": "that Colson was acting on the suggestion of Agent Murphy in inducing Massiah to enter the Chrysler and talk about the case. It is not disputed that Massiah entered the car of his own free choice and that he was equally free to speak about the case or to say nothing. It would needlessly hamper investigations of government agents if they were not able to make such contact with those under charges of crime as Agent Murphy made here through the co-defendant Col-son. Many criminal cases are solved by such means. We find no conflict between this view and the ethical precept that forbids direct communication between an attorney and another party represented by counsel, A. B. A. Canons of Ethics, Canon 9. Assuming without deciding that it would be improper for a prosecutor to interview a criminal defendant under indictment in the absence of his retained counsel, see Drinker, Professional Ethics 202 (1953), such a prohibition would not require that government investigatory agencies also refrain from any contact with a criminal defendant not in custody simply because he had retained counsel. To be sure, such a rule would prohibit an investigator’s acting as the prosecuting attorney’s alter ego, but there is no suggestion that Agent Murphy was so acting here. Moreover, the contact here was at still one further remove — with a co-defendant whose instructions from the investigator were apparently no more than to induce Massiah to talk. This was not a case where a defendant was in danger of being tricked by a lawyer’s artfully contrived questions into giving his case away. No case has been cited to us which supports the rule urged here by appellants. Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959) is not in point as the Supreme Court found that the defendant’s confession had been produced by coercion. Spano was under indictment for murder and had been surrendered by his counsel who had instructed him to answer no questions. Despite this, an assistant district attorney and numerous detectives questioned him in prison for eight hours and" } ]

[ { "docid": "22442615", "title": "", "text": "Edwards v. United States, 330 F.2d 849, 851-852 (D.C. Cir. 1964) (testimony of Berry); United States v. Tane, 329 F.2d 848, 853 (2d Cir. 1964) ; McLindon v. United States, 117 U.S.App.D.C. 283, 329 F.2d 238, 240-241 (1964); and Smith v. United States, 117 U.S.App.D.C. 1, 324 F.2d 879, 881-82 (1963). . Appellant does not rely upon the doctrine of 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), apparently conceding that his right to counsel was waived. For a discussion of the applicability of Canon 9, the Canons of Professional Ethics of the American Bar Association, see Broeder, Wong Sun v. United States: A Study in Faith, and Hope, 42 Neb.L.Rev. 483, 599-604 (1963). See also Lee v. United States, 322 F.2d 770, 777 (5th Cir. 1963); Ricks v. United States, 118 U.S.App.D.C. 216, 334 F.2d 964, 970 n. 18 (1964). The present case differs from that presented in United States v. Massiah, 307 F.2d 62, 66 (2d Cir. 1966), rev’d on other grounds 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), since at least from the time the agent telephoned the prosecuting attorney, the latter must be charged with responsibility for the continuation of the interview. . See also Inbau & Reid, Criminal Investigation and Confessions 192-93 (1962) : “Once improper interrogation methods have been used on a subject, a presumption exists that their influence upon him is a continuing one. The prosecution must assume the burden of proving that when the subject confessed later on he was no longer dominated or affected by the influence of the earlier improper interrogation practices. Moreover, the courts have demanded a very high degree of proof to offset the presumption that prevails in favor of the accused. Whenever an interrogator is called upon to interrogate a subject who has been mistreated or threatened, he should be informed (and the conditions surrounding the interview should so indicate) that no further mistreatment or threats will occur, and if a previous" }, { "docid": "6722325", "title": "", "text": "made no such broad finding. In that case, an informant, acting under the direction of the U.S. Attor- ne/s office, surreptitiously taped conversations between suspects in a series of burglaries and himself. Lemonakis, 485 F.2d at 946. The death of the informant prior to trial forced the government to resort to the tapes as its primary evidence against the defendants, who moved to suppress the tapes. Id. at 947. After rejecting the defendants’ Fifth and Sixth Amendment arguments, the court turned to their claim that government attorneys had violated the no-contact rule with respect to the defendants who had retained counsel at the time that the taped conversations took place. Acknowledging that the claim “present[ed] a somewhat novel claim for this court,” the court nevertheless concluded, on the specific facts presented, that the attorneys had not violated the no-contact rule. Id. at 955. After quoting United States v. Massiah, 307 F.2d 62 (2d Cir.1962), rev’d, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), the court explained: Similarly here, in a non-eustodial situation, the Government’s instructions to its informant, although provided by a U.S. Attorney as well as the investigating officers, were not such as to constitute [the informant] the “alter ego” of the U.S. Attorney’s office. Moreover, the Massiah surveillance was undertaken after the indictment of the suspect. Here, in the investigatory stage of the ease, the contours of the “subject matter of the representation” by appellants’ attorneys, concerning which the code bars “communication,” were less certain and thus even less susceptible to the damage of “artful” legal questions the Code provisions appear designed in part to avoid. Finally, we cannot say that at this stage of the Government’s investigation of a criminal matter, the public interest does not-as opposed to the different interests involved in civil matters permit advantage to be legally and ethically taken of a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. We find there was no ethical breach by the U.S. Attorneys prosecuting the case; accordingly, we need not reach what legal consequences might" }, { "docid": "6722324", "title": "", "text": "appropriate action when the judge becomes aware of reliable evidence indicating the likelihood of unprofessional conduct by a judge or lawyer” (emphasis added). In its December 23 opinion, the Court determined that reliable evidence existed “indicat[ing] that defense counsel’s participation in the efforts to produce the statements of account constituted a violation of Rule 4.2(a).” Mem. and Order dated Dec. 23, 2002, at 17. Defendants have failed to put forth any evidence that would undermine that conclusion, and thus the Court sees no reason why its referral to the Disciplinary Panel should be rescinded. Accordingly, the Court will leave it to the Disciplinary Panel to determine whether defense counsel committed an infraction of the ethics rules. Finally, defendants cite United States v. Lemonakis, 485 F.2d 941 (D.C.Cir.1973) for the proposition that “an attorney is not responsible for communications made by another unless that person is acting as the attorney’s ‘alter ego.’ ” Mot. to Reconsider at 12. But Lemonakis, another ease in which the issue presented was whether to suppress a series of taped conversations, made no such broad finding. In that case, an informant, acting under the direction of the U.S. Attor- ne/s office, surreptitiously taped conversations between suspects in a series of burglaries and himself. Lemonakis, 485 F.2d at 946. The death of the informant prior to trial forced the government to resort to the tapes as its primary evidence against the defendants, who moved to suppress the tapes. Id. at 947. After rejecting the defendants’ Fifth and Sixth Amendment arguments, the court turned to their claim that government attorneys had violated the no-contact rule with respect to the defendants who had retained counsel at the time that the taped conversations took place. Acknowledging that the claim “present[ed] a somewhat novel claim for this court,” the court nevertheless concluded, on the specific facts presented, that the attorneys had not violated the no-contact rule. Id. at 955. After quoting United States v. Massiah, 307 F.2d 62 (2d Cir.1962), rev’d, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), the court explained: Similarly here, in a non-eustodial situation, the" }, { "docid": "17309914", "title": "", "text": "(2d Cir. 1976) (it is not unethical behavior for attorney for potential plaintiff to interview potential defendant “so long as the latter knows that the statement is being taken by the lawyer in his status as attorney for the plaintiff”). A court exercising its supervisory powers in the service of DR 7-104(A)(l) should enforce the rule even though there are no formal parties to a pending litigation. See In re FMC Corp., 430 F.Supp. 1108 (S.D.W. Viewing the rule in light of its purpose makes clear that a rigid notion that ethical obligations commence only when a criminal proceeding begins is not in harmony with the spirit of the Code. The rule is crafted to protect a client from squandering a possible claim or defense and to insure against disclosure of privileged information. These concerns are fully implicated by the time a client becomes aware that he is a focus of suspicion, and the government attorney knows he is represented and undertakes to confer with counsel on the matter. In white-collar crimes — and the instant case reflects a growing emphasis on such matters by federal prosecutors — the most critical phase is often before indictment; it is then that the skilled attorney uses persuasion and negotiation to forestall or shape the potential prosecution. Under DR 7-104(A)(1) it is not material ethically that the client has not technically become a party by indictment, arraignment or arrest. D. Communication — Direct or Indirect— Moment of Violation. Any direct communication between the Assistant United States Attorney, or a representative of his office, and the defendant occurring after the government became aware that he was represented by counsel would constitute a violation of DR 7-104(A)(l). The government notes, however, that the meeting was with a Customs officer’s informant and all of the arrangements were made by Customs personnel, who as non-lawyers are not subject to the Code. See Massiah v. United States, 377 U.S. 201, 210-11, 84 S.Ct. 1199, 1205, 12 L.Ed.2d 246 (1964) (dissent) (co-defendant); United States v. Ferguson, 243 F.Supp. 237, 238-39 (D.D.C.1965) (FBI agent; suggesting, however, possible inadmissibility of evidence);" }, { "docid": "23476876", "title": "", "text": "defense — with the defendants and have her attorney sit with the other defense counsel. The trial judge responded by observing that this proffer did not warrant a hearing, but he nevertheless invited counsel to “make some more formal presentation as to why there ought to be a hearing.” He also stated that he would not grant a hearing “on the basis of this presentation.” The following day, Ginsberg’s counsel joined in the request for a hearing on Toro’s role. The trial judge again noted the insufficiency of the proffer made and invited counsel to make a more complete, formal motion in writing. Despite the court’s invitation, defense counsel submitted no written application nor did he raise the issue in any other manner during the remainder of the trial. We agree with the district judge that defense counsel made no offer of proof that would warrant holding a hearing. Unquestionably, government interference in the relationship between attorney and defendant may violate the latter’s right to effective assistance of counsel. See Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). However, assuming that the government does not deliberately interfere in the relationship between defendant and counsel, the mere presence of a government agent, informant, or cooperating witness at conferences between defendant and counsel does not violate the sixth amendment. Weatherford v. Bursey, 429 U.S. 545, 554-59, 97 S.Ct. 837, 843-45, 51 L.Ed.2d 30 (1977); cf. Massiah, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. We note that under Weatherford, 429 U.S. at 548-49, 97 S.Ct. at 840, 41, the need to maintain the confidentiality of an informant’s identity is a legitimate law enforcement objective. The record here establishes that the purpose of the government’s “intrusion” was both “legitimate” and “justifiable” under Weatherford. Prior to trial, the government submitted to the district court an ex parte application for an order permitting deferral until trial of any discovery that would disclose the identity of Rhina Toro as a cooperating government witness. The request was supported by a detailed affidavit substantiating the government’s allegation that disclosure of Toro’s" }, { "docid": "258044", "title": "", "text": "Cir.1982). Although this court has yet to decide the question, we took the opposite position in dicta in United States v. Pineda, 692 F.2d 284 (2d Cir.1982). While allowing post-indictment statements obtained during the investigation of a new crime to be introduced at sentencing proceedings on the old crime, we suggested that under Massiah the statements would have been inadmissible at the trial itself: The Court in Massiah noted that the government could properly continue investigating the defendant and his confederates even after the indictment was filed; during such an investigation, an informer might lawfully elicit incriminating statements from the defendant. But, the Court held, the government could not use such statements against the defendant at his trial based on that indictment. 377 U.S. at 206 [84 S.Ct. at 1203], Id. at 288. As we adhere to our analysis in Pineda of Massiah and its progeny, we conclude it was error for the court to admit appellant’s statements to Gaudet as they arose out of and concerned the offense for which Mealer was under indictment. The government’s post-indictment investigation in Massiah, unlike the investigation here, appears to have been aimed solely at the crime for which defendant was under indictment at the time. See United States v. Massiah, 307 F.2d 62 (2d Cir. 1962), rev’d, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). However, any doubt that the holding of Massiah was meant to apply also to statements concerning the indicted offense made in the course of an investigation into “new crimes” appears to have been resolved in the affirmative in Beatty v. United States, 389 U.S. 45, 88 S.Ct. 234, 19 L.Ed.2d 48 (1967), rev’g, 377 F.2d 181 (5th Cir.1967). Eight days after the defendant in Beatty had been indicted for the illegal sale of a firearm to a customer named Sirles, he contacted Sirles to arrange a meeting. Unknown to Beatty, Sirles had become a government informant. Sirles informed a federal agent of Beatty’s request, and on instructions from the agent met with Beatty in Sirles’ car, with the agent and a tape recorder secreted in" }, { "docid": "17309916", "title": "", "text": "State v. White, 494 S.W.2d 687, 692 (Mo.Ct.App.1973) (police); ABA Comm, on Professional Ethics, Informal Opinions, No. 1193 (1971) (lay investigators). While the United States Attorney’s office neither authorized nor participated in the plan, it is arguable that the Customs agents were constructively under the control of, and acting as the agents of, the United States Attorney. Cf. ABA Comm, on Professional Ethics, Opinions, No. 95 (1933) (municipal attorney responsible for acts of police officers under his supervision and control; officers are agents of the client municipality and attorney cannot sanction acts by his client which he himself may not perform). The circumstances of this case do not warrant such a legalistic approach. Fairness here prevents finding the Assistant United States Attorney guilty of a violation. He should not be held to have operated unethically when it is apparent that he was quite unaware of the eavesdropping until after the event. There is nothing to suggest that he indirectly encouraged the contact or intentionally shut his eyes to improprieties he knew others would commit. Cf. Breeder, “Wong Sun v. United States: A Study in Faith and Hope,” 42 Neb.L.Rev. 483, 602 (1963). The Customs agents were not acting as the alter ego of the prosecutor. See United States v. Massiah, 307 F.2d 62, 66 (2d Cir. 1962), rev’d, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). The prosecutor cannot, however, avoid responsibility for what he himself does at trial. An ethical violation would occur at the moment the evidence is introduced over defendant’s objection. He cannot, under the Canon, “take advantage of statements obtained from ... a person represented by counsel in the absence of counsel.” State v. White, 494 S.W.2d 687, 692 (Mo.Ct.App.1973). See also United States v. Thomas, 474 F.2d 110, 112 (10th Cir.) (excluding on ethical grounds statement taken by agent, who may not have known defendant was represented, without the knowledge of the United States Attorney, when the latter did know counsel was in the case), cert. denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160 (1973). In seeking to use the transcript," }, { "docid": "12829591", "title": "", "text": "that such a breach would require the suppression of evidence so obtained. The claim presents a somewhat novel question for this court. Although the Government did not respond to the argument in its brief, we nevertheless find the actions of the U. S. Attorneys to be consistent with the current ethical standards demanded of the legal profession. The “communication” between an attorney and an adverse party who has retained counsel, without the latter attorney’s consent or authority of law — proscribed by the American Bar Association’s Code of Professional Responsibility — does not in our view embrace the initiation and recording of the conversations between Seouloukas and appellants. As the Second Circuit stated in considering this issue under similar factual circumstances, Assuming [under Canon 9 — the predecessor to the provisions of the Code under which appellants claim] that it would be improper for a prosecutor to interview a criminal defendant under indictment in the absence of his retained counsel . . . such a prohibition would not require that govern ment investigatory agenies also refrain from any contact with a criminal defendant not in custody simply because he had retained counsel. To be sure, such a rule would prohibit an investigator’s acting as the prosecuting attorney’s alter ego, but the [police officer here did not so act, and] the contact [was further removed from the attorney in that it was] with a co-defendant whose instructions from the investigator were apparently no more than to induce Massiah to talk. This was not a case where a defendant was in danger of being tricked by a lawyer’s artfully contrived questions into giving his case away. United States v. Massiah, 307 F.2d 62, 66 (2d Cir. 1962) (Lumbard, C. J.), rev’d on other grounds, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Similarly here, in a non-custodial situation, the Government’s instructions to its informant, although provided by a U. S. Attorney as well as the investigating officers, were not such as to constitute Scouloukas the “alter ego” of the U. S. Attorney’s office. Moreover, the Massiah surveillance was undertaken after" }, { "docid": "7211264", "title": "", "text": "of DR 7-104(A)(l) to criminal prosecutions in United States v. Jamil, 707 F.2d 638 (2d Cir.1983). In Jamil, we held that “DR 7-104(A)(l) may be found to apply in criminal cases, ... to government attorneys ... [and] to non-attorney government law enforcement officers when they act as the alter ego of government prosecutors.” 707 F.2d at 645 (citations omitted). Even those courts restricting the rule’s ambit have suggested that, in appropriate circumstances, DR 7-104(A)(l) would apply to criminal prosecutions. See, e.g., United States v. Kenny, 645 F.2d 1323, 1339 (9th Cir.), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981); United States v. Lemonakis, 485 F.2d 941, 954-56 (D.C.Cir.1973), cert. denied, 415 U.S. 989, 94 S.Ct. 1586, 39 L.Ed.2d 885 (1984); United States v. Massiah, 307 F.2d 62, 65-66 (2d Cir.1962), rev’d on other grounds, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Thus, the government’s contention that DR 7-104(A)(l) is “inapplicable to criminal investigations” is mistaken. The applicability of DR 7-104(A)(l) to the investigatory stages of a criminal prosecution presents a closer question. The government asserts the rule is coextensive with the sixth amendment, and hence, that it remains inoperative until the onset of adversarial proceedings. The appellee responds that several courts have enforced DR 7-104(A)(l) prior to attachment of sixth amendment protections. We find no principled basis in the rule to constrain its reach as the government proposes; indeed, even a recent district court decision declining to apply DR 7-104(A)(l) to the investigatory stages of a prosecution conceded, “Those courts that have found DR 7-104(A)(l) inapplicable to the investigatory stage of a criminal prosecution have not clearly stated the bases for those decisions.” United States v. Guerrerio, 675 F.Supp. 1430, 1436 (S.D.N.Y.1987). Nonetheless, we urge restraint in applying the rule to criminal investigations to avoid handcuffing law enforcement officers in their efforts to develop evidence. The government relies substantially on dicta from United States v. Vasquez, 675 F.2d 16, 17 (2d Cir.1982) (per curiam), where we suggested that DR 7-104(A)(l)’s applicability to a criminal investigation “is doubtful.” More recently, however, in Jamil, we" }, { "docid": "7211270", "title": "", "text": "knowledge of that fact.” Hammad, 678 F.Supp. at 401. Thus, he reasoned, the rule exempts the vast majority of cases where suspects are unaware they are being investigated. While it may be true that this limitation will not unduly hamper the government’s ability to conduct effective criminal investigations in a majority of instances, we nevertheless believe that it is unduly restrictive in that small but persistent number of cases where a career criminal has retained “house counsel” to represent him in connection with an ongoing fraud or criminal enterprise. This Court has recognized that prosecutors have a responsibility to perform investigative as well as courtroom-related duties in criminal matters, see, e.g., Barbera v. Smith, 836 F.2d 96, 99 (2d Cir.1987). As we see it, under DR 7-104(A)(l), a prosecutor is “authorized by law” to employ legitimate investigative techniques in conducting or supervising criminal investigations, and the use of informants to gather evidence against a suspect will frequently fall within the ambit of such authorization. Notwithstanding this holding, however, we recognize that in some instances a government prosecutor may overstep the already broad powers of his office, and in so doing, violate the ethical precepts of DR 7-104(A)(l). In the present case, the prosecutor issued a subpoena for the informant, not to secure his attendance before the grand jury, but to create a pretense that might help the informant elicit admissions from a represented suspect. Though we have no occasion to consider the use of this technique in relation to unrepresented suspects, see United States v. Martino, 825 F.2d 754 (3d Cir.1987), we believe that use of the technique under the circumstances of this case contributed to the informant’s becoming the alter ego of the prosecutor. Consequently, the informant was engaging in communications proscribed by DR 7-104 (A)(1). See Massiah, 307 F.2d 62, 66 (2d Cir.1962), rev’d on other grounds, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Therefore, we agree with Judge Glasser that the prosecution violated the disciplinary rule in this case. Notwithstanding requests for a bright-line rule, we decline to list all possible situations that may" }, { "docid": "6722326", "title": "", "text": "Government’s instructions to its informant, although provided by a U.S. Attorney as well as the investigating officers, were not such as to constitute [the informant] the “alter ego” of the U.S. Attorney’s office. Moreover, the Massiah surveillance was undertaken after the indictment of the suspect. Here, in the investigatory stage of the ease, the contours of the “subject matter of the representation” by appellants’ attorneys, concerning which the code bars “communication,” were less certain and thus even less susceptible to the damage of “artful” legal questions the Code provisions appear designed in part to avoid. Finally, we cannot say that at this stage of the Government’s investigation of a criminal matter, the public interest does not-as opposed to the different interests involved in civil matters permit advantage to be legally and ethically taken of a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. We find there was no ethical breach by the U.S. Attorneys prosecuting the case; accordingly, we need not reach what legal consequences might flow had we concluded otherwise. Id. at 956 (internal citations omitted). The factual and legal differences between Lemo-nakis and the instant case are so numerous that it hardly suffices merely to say that the earlier case is inapposite. However, the Court will limit itself to observing that nowhere in Lemonakis does the D.C. Circuit “ma[k]e clear that an attorney is not responsible for communications made by another unless that person is acting as the attorney’s ‘alter ego.’ ” In short, defendants’ motion to reconsider fails to set forth any persuasive arguments why this Court should reconsider the opinion it issued on December 23, 2002. Instead, defendants misinterpret the language contained in the notices they mailed to class members, misrepresent statements made by their defense counsel to this Court, and mis-characterize the holdings of the cases that they claim lend support to their arguments, all in an attempt to re-open issues that have already been the subject of two rounds of briefing and oral arguments. There is no better way to waste the limited resources of" }, { "docid": "23576548", "title": "", "text": "F.2d 1323, 1339 (9th Cir.), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981); United States v. Massiah, 307 F.2d 62, 66 (2d Cir.1962), rev’d on constitutional grounds, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) . This court, in earlier decisions, has addressed the question of what protection is afforded by DR 7-104(A)(l) to a person prior to the commencement of formal criminal proceedings against him. Most recently, in United States v. Vasquez, 675 F.2d 16, 17 (2d Cir.1982), we briefly addressed the question of whether DR 7-104(A)(l) was violated “entitling [the defendant] to invoke the Sixth Amendment.” There, defendant had retained counsel prior to being indicted. However, prior to the filing of an indictment, but after he had retained coun sel, a tape recording which contained inculpatory statements by Vasquez was made. We held that no protection was afforded by DR 7-104(A)(l) under those circumstances, since “[s]uch a principle would simply enable criminal suspects, by retaining counsel, to hamper the government’s conduct of legitimate investigations.” Id. As we said in Massiah, Assuming without deciding that it would be improper for a prosecutor to interview a criminal defendant under indictment in the absence of his retained counsel, ... such a prohibition would not require that government investigatory agencies also refrain from any contact with a criminal defendant not in custody simply because he had retained counsel. 307 F.2d at 66. In Massiah, we noted that the purpose of DR 7-104(A)(l) is to protect a defendant from the danger of being “tricked” into giving his case away by opposing counsel’s artfully crafted questions. There, non-lawyer government investigators had instructed an informant to tape record a conversation with defendant in a non-custodial setting after the defendant had been indicted. This court held in Massiah that as long as the investigators were not acting as the alter ego of the prosecutor, no violation of DR 7-104(A)(l) had occurred. Id. Here, as in Vasquez, Jamil had not yet been indicted at the time the tape recording was made, and the conversation occurred in a non-custodial setting. However, unlike" }, { "docid": "95877", "title": "", "text": "without allowing the defendants an unwarranted preview of the government’s case. Once formal charges have been filed, the use of government informants to secure information from a defendant is sharply curtailed in at least two respects. First, the Supreme Court has held that the Sixth Amendment is violated whenever an undisclosed government agent “deliberately elicits” incriminating statements from a defendant in the absence of counsel, after the defendant has been indicted, if those statements are later introduced into evidence at trial. See Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964). Second, in a line of cases exemplified-by United States v. Rispo, 460 F.2d 965 (C.A.3, 1972), the courts have held that the presence of informants in the defense camp during attorney-client conferences, after the defendant has been indicted, similarly violates the Sixth Amendment where the trial strategy gleaned from these meet ings is disclosed by the informant to the government and some prejudice thereby accrues to the defendant. See United States v. Morrison, -U.S.-, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981); Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977); United States v. Rispo, supra; United States v. Natale, 494 F.Supp. 1114 (E.D.Pa.1979). Defendants have not directly requested the Court to order an inquiry designed to uncover Massiah-type violations. Nevertheless, the Court will sua sponte include this issue in a pretrial evidentiary hearing to insure that the conduct condemned in Massiah will not become a factor during the trial of this case. In Massiah, the defendant was indicted for violating the federal narcotics laws, retained a lawyer, pleaded not guilty and was released on bail. 377 U.S. at 201, 84 S.Ct. at 1199. Shortly after Massiah’s release on bail, a co-defendant decided to cooperate with the government in its continuing investigation of Massiah’s drug activities, and permitted government agents to install a radio transmitter in his automobile. Subsequently, the co-defendant held a lengthy conversation with Massiah which was transmitted to, and recorded by, an FBI agent positioned nearby. At trial, the tape of the discussion, which contained incriminating" }, { "docid": "7092589", "title": "", "text": "uncertainty and misunderstanding in this instance. Grand jurors can’t be expected to know the requirements of law concerning lawful immunity grants, and if the prosecutor ignores the statute, the grand jury should be told that witnesses are testifying under a side-deal made with the witness by the prosecutor. The nature and informality of the immunity grant might bear on a grand juror’s evaluation of the credibility of a witness, especially if the grand juror knew of the short cut used by the prosecution. James Treece is a former United States Attorney for the District of Colorado. He was representing one of the targets of the grand jury investigation, and he was served with a subpoena duces tecum to produce records before the grand jury. He told the IRS Special Agent/Grand Jury Agent/Assistant to the prosecutor who served him that he had no such records in his possession, to which the agent, speaking in which capacity I know not, responded, “You’re a liar.” I guess that at this point this “man of many occupations” decided to act as a grand juror and pass on credibility. That this was said is denied, but I cannot disregard the testimony. I have no knowledge that any such comment was communicated to the grand jury, but Mr. Treece was required to testify after being called a liar by the “grand jury agent”, and although I doubt that Mr. Treece was intimidated, other witnesses would have been. We have not one but two problems under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. With full knowledge that he was represented by counsel, Declan O’Donnell appeared before the grand jury against the advice of his counsel, and that advice was known to the prosecutors. The government argues that O’Donnell was a lawyer and that he appeared voluntarily. I don’t think that this is any answer to Massiah, although I concede that the case deals with an indicted defendant and O’Donnell was not then indicted. The government excuses its conduct saying it is permitted under Edwards v. Arizona, 451 U.S. 477, 478, 101" }, { "docid": "17309915", "title": "", "text": "instant case reflects a growing emphasis on such matters by federal prosecutors — the most critical phase is often before indictment; it is then that the skilled attorney uses persuasion and negotiation to forestall or shape the potential prosecution. Under DR 7-104(A)(1) it is not material ethically that the client has not technically become a party by indictment, arraignment or arrest. D. Communication — Direct or Indirect— Moment of Violation. Any direct communication between the Assistant United States Attorney, or a representative of his office, and the defendant occurring after the government became aware that he was represented by counsel would constitute a violation of DR 7-104(A)(l). The government notes, however, that the meeting was with a Customs officer’s informant and all of the arrangements were made by Customs personnel, who as non-lawyers are not subject to the Code. See Massiah v. United States, 377 U.S. 201, 210-11, 84 S.Ct. 1199, 1205, 12 L.Ed.2d 246 (1964) (dissent) (co-defendant); United States v. Ferguson, 243 F.Supp. 237, 238-39 (D.D.C.1965) (FBI agent; suggesting, however, possible inadmissibility of evidence); State v. White, 494 S.W.2d 687, 692 (Mo.Ct.App.1973) (police); ABA Comm, on Professional Ethics, Informal Opinions, No. 1193 (1971) (lay investigators). While the United States Attorney’s office neither authorized nor participated in the plan, it is arguable that the Customs agents were constructively under the control of, and acting as the agents of, the United States Attorney. Cf. ABA Comm, on Professional Ethics, Opinions, No. 95 (1933) (municipal attorney responsible for acts of police officers under his supervision and control; officers are agents of the client municipality and attorney cannot sanction acts by his client which he himself may not perform). The circumstances of this case do not warrant such a legalistic approach. Fairness here prevents finding the Assistant United States Attorney guilty of a violation. He should not be held to have operated unethically when it is apparent that he was quite unaware of the eavesdropping until after the event. There is nothing to suggest that he indirectly encouraged the contact or intentionally shut his eyes to improprieties he knew others would commit. Cf." }, { "docid": "23128199", "title": "", "text": "Amendments to the United States Constitution. The Sixth Amendment provides in part that \"[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.\" U.S. Const. amend. VI. Relying on Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) and its progeny, Matteo claims the Pennsylvania Superior Court's rejection of his Sixth Amendment argument was both \"contrary to\" and an \"unreasonable application of\" relevant Supreme Court precedent. In Massiah, the Supreme Court held that deliberate elicitation ot incriminating statements by a government agent, outside the presence of a charged defendant's attorney, violates the Sixth Amendment. Federal agents had secured the cooperation of an informant who agreed to let the agents place a radio transmitter underneath the seat of his car. An agent then overheard a conversation between Massiah and the informant, in which Massiah made several incriminating remarks about his drug importation activities. At trial, the agent was permitted to testify as to what he overheard on the radio transmitter, and Massiah was convicted. The Supreme Court overturned his conviction, holding that “the petitioner was denied the basic protections of [the Sixth Amendment] guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” 377 U.S. at 206, 84 S.Ct. 1199. In a subsequent line of cases, the Court developed the Massiah doctrine governing the constitutionality of these so-called “secret interrogations.” The cases establish three basic requirements for finding a Sixth Amendment violation: (1) the right to counsel must have attached at the time of the alleged infringement; (2) the informant must have been acting as a “government agent”; and (3) the informant must have engaged in “deliberate elicitation” of incriminating information from the defendant. See, e.g., Maine v. Moulton, 474 U.S. 159, 170-71, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985); United States v. Henry, 447 U.S. 264, 269-270, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). We will review each separately" }, { "docid": "258045", "title": "", "text": "The government’s post-indictment investigation in Massiah, unlike the investigation here, appears to have been aimed solely at the crime for which defendant was under indictment at the time. See United States v. Massiah, 307 F.2d 62 (2d Cir. 1962), rev’d, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). However, any doubt that the holding of Massiah was meant to apply also to statements concerning the indicted offense made in the course of an investigation into “new crimes” appears to have been resolved in the affirmative in Beatty v. United States, 389 U.S. 45, 88 S.Ct. 234, 19 L.Ed.2d 48 (1967), rev’g, 377 F.2d 181 (5th Cir.1967). Eight days after the defendant in Beatty had been indicted for the illegal sale of a firearm to a customer named Sirles, he contacted Sirles to arrange a meeting. Unknown to Beatty, Sirles had become a government informant. Sirles informed a federal agent of Beatty’s request, and on instructions from the agent met with Beatty in Sirles’ car, with the agent and a tape recorder secreted in the trunk of the car. At the meeting, Beatty asked Sirles about the whereabouts of the gun he had already sold to Sirles, told Sirles he had additional guns for sale, and threatened Sirles with bodily harm if Sirles testified against Beatty at trial on the pending indictment or provided the gun he had purchased from Beatty as evidence. At Beatty’s trial on the original indictment, Sirles testified to the above conversation. On appeal, the Fifth Circuit rejected Beatty’s argument that admission of Sirles’ testimony violated his Sixth Amendment rights under Massi-ah, concluding that Massiah should be limited to situations where “government agents have premeditatively approached the accused with the intention and design of inducing him to make incriminating statements while unaided by his counsel.” 377 F.2d at 190. Noting that the accused had initiated this meeting and that his statements to Sirles were voluntary and not deliberately elicited by Sirles, the court held that those statements were not barred by Massiah and hence were admissible against the accused. The Supreme Court summarily reversed, citing" }, { "docid": "8792031", "title": "", "text": "by the attorney-client privilege at trial. Government’s Response at 34. Thus, to the extent that the information Defendant seeks to suppress falls within that believed by the Government to potentially involve the privilege, Defendant’s motion is moot. Defendant has submitted no evidence of any possible violation of the attorney-client privilege in this case, merely speculating that although the Government has stated it has no privileged information in its possession, “[t]he prosecutor might not know the source or nature of all of his information, and other Government agents may have provided the prosecutor with apparently non-privileged information that they obtained through knowledge of privileged communication.” Defendant’s Supplemental Memorandum at 11. Defendant’s inference based on Schweter’s failure to specifically negate having overheard conversations between Defendant and Summers prior to September 19, 1997 is too thin a reed upon which to mandate an evidentiary hearing. As discussed, Defendant’s failure to describe any circumstances under which Schweter could conceivably have done so, itself negates Defendant’s assertions. Such failure by the only person in a position to know the facts is highly persuasive that such facts do not exist. In sum, based on Defendant’s submissions, suppression of the materials seized from Defendant’s law office computer is unwarranted. Pena, supra, at 339. 3. Defendant’s Sixth Amendment Claim Defendant argues that the Government, acting through Schweter, interfered with the attorney-client relationship in this case in violation of his Sixth Amendment right to counsel, by receiving privileged communications and conducting a search at a time when neither Defendant nor his attorney was present. Defendant’s Motion at 17. Although Defendant seeks the suppression of evidence on this ground, Defendant has failed to provide factual evidence sufficient to warrant suppression of evidence. Pena, supra, at 339. Government interference in the relationship between attorney and defendant may violate the defendant’s right to effective assistance of counsel. See Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). However, assuming that the government does not deliberately interfere in the relationship between defendant and counsel, the mere presence of a government agent, informant, or cooperating witness at conferences between" }, { "docid": "12829592", "title": "", "text": "refrain from any contact with a criminal defendant not in custody simply because he had retained counsel. To be sure, such a rule would prohibit an investigator’s acting as the prosecuting attorney’s alter ego, but the [police officer here did not so act, and] the contact [was further removed from the attorney in that it was] with a co-defendant whose instructions from the investigator were apparently no more than to induce Massiah to talk. This was not a case where a defendant was in danger of being tricked by a lawyer’s artfully contrived questions into giving his case away. United States v. Massiah, 307 F.2d 62, 66 (2d Cir. 1962) (Lumbard, C. J.), rev’d on other grounds, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Similarly here, in a non-custodial situation, the Government’s instructions to its informant, although provided by a U. S. Attorney as well as the investigating officers, were not such as to constitute Scouloukas the “alter ego” of the U. S. Attorney’s office. Moreover, the Massiah surveillance was undertaken after the indictment of the suspect. Here, in the investigatory stage of the case, the contours of the “subject matter of the representation” by appellants’ attorneys, concerning which the code bars “communication,” were less certain and thus even less susceptible to the damage of “artful” legal questions the Code provisions appear designed in part to avoid. Finally, we cannot say that at this stage of the Government’s investigation of a criminal matter, the public interest does not — as opposed to the different interests involved in civil matters — permit advantage to be legally and ethically taken of a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. Hoffa, supra, 385 U.S. at 302, 87 S.Ct. at 413. See also United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122 (1971). We find there was no ethical breach by the U.S. Attorneys prosecuting the case; accordingly, we need not reach what legal consequences might flow had we concluded otherwise. C. Appellant Lemonakis raises a final objection based" }, { "docid": "7211271", "title": "", "text": "government prosecutor may overstep the already broad powers of his office, and in so doing, violate the ethical precepts of DR 7-104(A)(l). In the present case, the prosecutor issued a subpoena for the informant, not to secure his attendance before the grand jury, but to create a pretense that might help the informant elicit admissions from a represented suspect. Though we have no occasion to consider the use of this technique in relation to unrepresented suspects, see United States v. Martino, 825 F.2d 754 (3d Cir.1987), we believe that use of the technique under the circumstances of this case contributed to the informant’s becoming the alter ego of the prosecutor. Consequently, the informant was engaging in communications proscribed by DR 7-104 (A)(1). See Massiah, 307 F.2d 62, 66 (2d Cir.1962), rev’d on other grounds, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Therefore, we agree with Judge Glasser that the prosecution violated the disciplinary rule in this case. Notwithstanding requests for a bright-line rule, we decline to list all possible situations that may violate DR 7-104(A)(1). This delineation is best accomplished by case-by-case adjudication, particularly when ethical standards are involved. As our holding above makes clear, however, the use of informants by government prosecutors in a preindictment, non-custodial situation, absent the type of misconduct that occurred in this case, will generally fall within the “authorized by law” exception to DR 7-104(A)(l) and therefore will not be subject to sanctions. On appeal, the government also claims that even if there was a violation of the disciplinary rule, exclusion is inappropriate to remedy an ethical breach. We have not heretofore decided whether suppression is warranted for a DR 7-104(A)(1) violation. See, e.g., Jamil, 707 F.2d at 646. We now hold that, in light of the underlying purposes of the Professional Responsibility Code and the exclusionary rule, suppression may be ordered in the district court’s discretion. The exclusionary rule mandates suppression of evidence garnered in contravention of a defendant’s constitutional rights and protections. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The rule is thus" } ]

[ { "docid": "15696046", "title": "", "text": "437g(a)(4)(A)(i), with such conciliation efforts remaining confidential pursuant to 2 U.S.C. § 437g(a)(4)(B)(i). Should the matter not be resolved by informal means, the FEC has the authority to initiate a civil action for relief in an appropriate United States District Court, under 2 U.S.C. § 437g(a)(6), where the campaign committee charged with violations of law would have all the procedural protections normally afforded defendants in civil cases. RBC also argues that the terms of FECA and PECFA, aside from due process requirements, direct that the audit report in question remain confidential. RBC cites 2 U.S.C. § 437g(a)(4)(B)(i) and § 437(a)(12) for the proposition that FECA prohibits disclosure of information concerning proceedings thereunder. However, these provisions apply only to enforcement proceedings under FECA, and not to the audit and repayment determination process set forth in PECFA. Subsection (a)(4)(B)(i) specifies that no information in connection with a “conciliation attempt” by the FEC under section 437g(a)(4)(A) may be made public without the parties’ written consent. Yet the audit process is not a “conciliation attempt” under that statute, but a procedure under PECFA, and as such, the confidentiality provision of subsection (a)(4)(B)(i) does not apply. Federal Election Commission v. Illinois Medical Political Action Committee, 503 F.Supp. 45, 47 (N.D.Ill.1980). Subsection (a)(12), as noted above, requires that “[a]ny notification or investigation made under this section shall not be made public” without the written consent of the parties. Again, however, the audit process is not a “notification or investigation” under section 437g, but a procedure established by PECFA. Moreover, as another court noted, “The legislative history of the provision [section 437g(a)(12)(A)] clearly establishes that it was not meant to conceal the results or the contents of an investigation, but rather that it was meant to avoid adverse speculative publicity during the pendency of an investigation.” Federal Election Commission v. Illinois Medical Political Action Committee, supra, at 46, citing H. Conf. Rept. No. 94-1057, 94th Cong., 1st Sess. 50, reprinted in [1976] U.S.Code Cong. & Admin.News 946; 122 Cong. Rec. 8566 (Mar. 30, 1976) (statement of Rep. Hays). As such, these subsections do not support RBC’s argument" } ]

[ { "docid": "15696045", "title": "", "text": "though, again, nothing in the regulations or statutes requires the FEC to allow such submittals. After an initial repayment determination is made, regulations provide for 30 days (and a possible 30 day extension) to make additional submittals in writing in the event that the campaign committee disputes the FEC’s initial determination. 11 C.F.R. § 9007.2(c). Any materials submitted under 11 C.F.R. § 9007.2(c) must be considered by the FEC in making its final determination. 11 C.F.R. § 9007.2(d). That final determination must include a statement in writing for the FEC’s action, 11 C.F.R. § 9007.2(e), and is, as noted above, reviewable in the Court of Appeals. 26 U.S.C. § 9011(a). Consequently, the statutory audit procedure furnishes RBC with sufficient input comporting with the requirements of due process. Moreover, should the information in the audit procedure lead toward enforcement of violations under FECA, the law provides for adequate notice of allegations of such violations, see, 2 U.S.C. § 437g(a)(2), and an opportunity to resolve the matter by informal methods of conference and conciliation, 2 U.S.C. § 437g(a)(4)(A)(i), with such conciliation efforts remaining confidential pursuant to 2 U.S.C. § 437g(a)(4)(B)(i). Should the matter not be resolved by informal means, the FEC has the authority to initiate a civil action for relief in an appropriate United States District Court, under 2 U.S.C. § 437g(a)(6), where the campaign committee charged with violations of law would have all the procedural protections normally afforded defendants in civil cases. RBC also argues that the terms of FECA and PECFA, aside from due process requirements, direct that the audit report in question remain confidential. RBC cites 2 U.S.C. § 437g(a)(4)(B)(i) and § 437(a)(12) for the proposition that FECA prohibits disclosure of information concerning proceedings thereunder. However, these provisions apply only to enforcement proceedings under FECA, and not to the audit and repayment determination process set forth in PECFA. Subsection (a)(4)(B)(i) specifies that no information in connection with a “conciliation attempt” by the FEC under section 437g(a)(4)(A) may be made public without the parties’ written consent. Yet the audit process is not a “conciliation attempt” under that statute, but" }, { "docid": "15696028", "title": "", "text": "inter alia, requiring certain organizational and financial reports, and prohibiting or limiting certain campaign contributions. 2 U.S.C. §§ 431 et seq. The FEC derives authority from PECFA to conduct audits and examinations to determine whether repayments are due under that act. 26 U.S.C. § 9007. Its authority to enforce violations of PECFA (e. g., knowing and willful failures to comply with the payment conditions, see, 26 U.S.C. § 9012) and of FECA is found in FECA, at 2 U.S.C. § 437g. The audit report in question is a product of the examining and auditing process under PECFA, rather than of the enforcement procedure under FECA. The audit process begins after each Presidential election, when the Commission is required to conduct an examination and audit of the qualified campaign expenses of the candidates of each political party for President and Vice President. 26 U.S.C. § 9007(a); 11 C.F.R. § 9007.1. The audit serves to determine whether the candidate has been paid from the Campaign Fund more than he was entitled to receive under section 9004 of the Act and should make repayments to the Fund. 26 U.S.C. 9007(b); 11 C.F.R. § 9007.2. An interim audit report, not required by statute or regulation, is presented to each can didate’s campaign committee, with an opportunity to respond thereto, under an informal practice established by the FEC. Letter from FEC Chairman McGarry to Counsel for RBC, August 4, 1981 (Exhibit H to Complaint). Upon completion of the final audit, which may or may not contain a determination that repayments are appropriate, the Commission is required to notify the candidates whether such repayments will be required. 26 U.S.C. § 9007(b)(2); 11 C.F.R. § 9007.-2(a). A candidate found to be owing repayments must make such repayments within 30 days of receiving notice thereof from the Commission, but may request a 90 day extension of the repayment period. 11 C.F.R. § 9007.2(b). Moreover, if a candidate disputes the finding that repayments are due, he is afforded the opportunity to present to the Commission his arguments to the contrary, in writing, within 30 days of the issuance of" }, { "docid": "15696042", "title": "", "text": "‡ ‡ ¡fc sk ♦ It has been Commission practice to allow committees of publicly-financed candidates a period of 30-days from receipt of an interim report to submit responses to matters contained in the report. Such responses are reviewed by the Audit Division prior to making any recommendations to the Commission, and are considered by the Commission before voting on the contents of the final audit report. Id. As such, it is clear that the interim report made available to RBC in June, 1981 and the final audit report that the FEC seeks to disclose are two different documents that in all probability will contain different material, inasmuch as the final audit report which would be made public would follow further submissions by RBC. In addition, Chairman McGarry specifically noted that, at the time of his letter, the Audit Division “ha[d] yet to make a recommendation for repayment” and that a certain dollar amount on the interim report represented a preliminary calculation which “should not be interpreted ■ as a Commission determination.” McGarry Letter, at 3. Moreover, by law the final audit report cannot contain assertions of violations of election laws. As noted above, violations of FECA and PECFA, as distinguished from repayment determinations, are enforced under FECA, at 2 U.S.C. § 437g. The relevant part of that section provides that “Any notification or investigation made under this section shall not be made public by the Commission or by any person without the written consent of the person receiving such notification or the person with respect to whom such investigation is made.” 2 U.S.C. § 437g(a)(12)(A). Consequently, RBC’s fears of disclosure of information relating to alleged violations are groundless, and therefore, with respect to disclosure of such information, there is nothing to require remedying. Inasmuch as the audit process is merely a preliminary procedure which may lead to initial determinations that repayments are due or cause the FEC to initiate proceedings as to statutory violations, the audit report does not constitute a final determination for which due process would require an opportunity to be heard. The audit report merely is" }, { "docid": "10436689", "title": "", "text": "administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit or investigation, of from the news media, unless ... the person bringing the action is an original source of the information.” 31 U.S.C. § 3730(e)(4)(A). In its cross-appeal, Hughes alleges that Schumer’s action is barred because it is based upon unclassified government audits which have been disclosed publicly. We review the question of whether the district court had subject matter jurisdiction de novo. Nike, Inc. v. Comercial Iberica De Exclusivas Deportivas, S.A., 20 F.3d 987, 990 (9th Cir.1994). We hold that Schumer’s allegations were not publicly disclosed and therefore that the district court properly exercised jurisdiction. Claiming that Schumer’s allegations are based upon charges made by certain government audit reports, Hughes contends that these audits effectively had been disclosed to the public prior to the filing of Schumer’s suit as a result of (1) disclosure of the audits’ allegations to “innocent” Hughes employees; and (2) the availability of the audits through the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. We reject both arguments. A. Disclosure to Employees Hughes argues that the dissemination of government audits to employees of Hughes and Northrop who were not involved in the alleged fraud constituted public disclosure. Hughes relies on United States ex rel. Doe v. John Doe Corp., 960 F.2d 318 (2d Cir.1992), in which the Second Circuit held that public disclosure occurred when federal investigators arrived at the defendant company’s offices with a search warrant and informed employees on site that they were investigating allegations of fraudulent overcharging under defense contracts. See id. at 319-20. Rejecting the argument that disclosure had not occurred because the information was disseminated to a limited number of persons, the court stated that “[ojnce allegations of fraud are revealed to members of the public with no prior knowledge thereof, the government can no longer throw a cloak of secrecy around the allegations.” Id. at 323. We decline to adopt the rule of Doe for application in this circuit. At one level, the Doe court’s treatment of company employees as members of the public" }, { "docid": "3565409", "title": "", "text": "the questionnaire touched upon matters of public concern. Id. at 1694. Because Patteson’s statements before the legislative committee must be evaluated under the Pickering balancing test, the district court erred in considering only the state’s interests in its analysis. Although the ultimate determination in whether speech is constitutionally protected is a question of law, Connick v. Myers, supra at 1690 n. 7 & 1692 n. 10; Van Ooteghem v. Gray, 628 F.2d 488, 492 (5th Cir.1980), we believe that in the present case the district court should have the initial opportunity to weigh the competing interests under the proper standard. Accordingly, the district court’s opinion is vacated and remanded so that it may correctly apply the Pickering test. In applying the Pickering analysis to this case, the district court should give special attention to the nature of Patteson’s speech. As the Supreme Court stated in Connick, “the state’s burden in justifying a particular discharge varies depending on the nature of the employee’s expression.” 103 S.Ct. at 1691-92. In Connick the employee’s expression was characterized as “an employee grievance concerning internal office policy,” and accordingly was given little weight in the balancing test. Id. at 1693-94. In this case, however, Patteson’s speech touched upon issues of public concern far weightier than those expressed in Connick. Undoubtedly, Patteson’s statement that the Governor’s Audit “did not disclose everything it needed to disclose in order for [him] to sign it” related to a matter of substantial public concern. His testimony came within days after the press and the legislature had devoted significant attention to the Governor’s Audit, and in particular to whether the audit report attempted to conceal certain expenses in the Governor’s Office. Moreover, Patteson made the statement in response to a question by Senator Chambers, and nothing in this record indicates his testimony was other than truthful. On the other side of the Pickering balancing test, the court must consider the state’s interest in ensuring the efficient operation of the Auditor’s Office. As the district court observed, the disagreement between Patteson and Johnson over the Governor’s Audit was deep and devisive. The" }, { "docid": "16488918", "title": "", "text": "field investigation or audit,” upon a finding of “reason to believe”); id. § 437g(a)(ll) (Commission may petition to hold a party in civil contempt if it “determines after an investigation” that the party violated a court order). Moreover, we think it telling that in contrast to subsection (a)(12)(A), section 437g(a)’s other confidentiality provision expressly protects information revealed in the course of Commission enforcement actions. Specifically, subsection (a)(4)(B)(i) forbids the disclosure of both “action[s] by the Commission or any person ... in connection with any conciliation attempt” and “information derived” in connection with such attempts. Id. § 437g(a)(4)(B)(i). Finally, the fact that subsection (a)(12)(A) permits disclosure upon written consent of “the person with respect to whom such investigation is made” without addressing the interests of third party witnesses who have provided confidential materials to investigators also implies that Congress was concerned about protecting the targets of Commission investigations, not the agency’s sources of information. The AFL-CIO argues that its interpretation is supported by viewing subsection (a)(12)(A) in the context of section 437g(a)’s larger structure, but we think that exercise further demonstrates that the statute has two possible meanings. According to the AFL-CIO, section 437g(a)’s express requirement to release Commission no-violation determinations and signed conciliation agreements, id. § 437g(a)(4)(B)(ii), would be superfluous if Congress had intended the Commission to release all investigatory file materials in every closed case. Thus, except for the limited disclosures required by subsection (a)(4)(B)(ii), the AFL-CIO asserts, subsection (a)(12)(A)’s confidentiality mandate continues to protect all other investigation-related documents even after an investigation has ended. This argument makes sense, however, only if subsection (a)(12)(A) in fact protects investigatory files. If, as the Commission maintains, the statute prohibits only disclosure of the fact that the Commission is engaged in the act of investigating a complaint, then the provision the AFL-CIO relies on merely serves to formally terminate that confidentiality requirement at the time the Commission either determines that no violation occurred or signs a conciliation agreement, since the release of a no-violation determination or conciliation agreement will implicitly reveal the fact that an investigation occurred. For that matter, so will" }, { "docid": "16488910", "title": "", "text": "decides to dismiss a complaint at any stage of the process, however, the statute allows “aggrieved” parties to challenge the dismissal in U.S. District Court. Id. § 437g(a)(8). Two parts of section 437g(a) directly address confidentiality and disclosure of enforcement-related information. Subsection (a)(12)(A) — the provision at issue in this case — states that “[a]ny notification or investigation made under this section shall not be made public by the Commission or by any person without the written consent of the person receiving such notification or the person with respect to whom such investigation is made.” Id. § 437g(a)(12)(A). Subsection (a)(4)(B) addresses disclosures in post-investigation proceedings: (i) No action by the Commission or any person, and no information derived, in connection with any conciliation attempt by the Commission ... may be made public by the Commission without the written consent of the respondent and the Commission. (ii) If a conciliation agreement is agreed upon by the Commission and the respondent, the Commission shall make public any conciliation agreement signed by both the Commission and the respondent. If the Commission makes a determination that a person has not violated ... [election laws], the Commission shall make public such determination. Id. § 437g(a)(4)(B). The Commission promulgated two regulations implementing these provisions, 11 C.F.R. §§ 111.20, 111.21, plus a third that reconciles FECA with the Freedom of Information Act, 5 U.S.C. § 552. The latter regulation, 11 C.F.R. § 5.4(a)(4), requires the disclosure of investigatory file materials in closed cases: Opinions of Commissioners rendered in enforcement cases and General Counsel’s Reports and non-exempt 2 U.S.C. 437g investigatory materials shall be placed on the public record of the Agency no later than 30 days from the date on which all respondents are notified that the Commission has voted to close such an enforcement file. 11 C.F.R. § 5.4(a)(4). The roots of this case reach back to the mid-1990s when the National Republican Senatorial Committee, the National Republican Congressional Committee, and an independent political action committee chaired by Oliver North filed eleven complaints with the Commission alleging, among other things, that the AFL-CIO and various individual" }, { "docid": "15696043", "title": "", "text": "3. Moreover, by law the final audit report cannot contain assertions of violations of election laws. As noted above, violations of FECA and PECFA, as distinguished from repayment determinations, are enforced under FECA, at 2 U.S.C. § 437g. The relevant part of that section provides that “Any notification or investigation made under this section shall not be made public by the Commission or by any person without the written consent of the person receiving such notification or the person with respect to whom such investigation is made.” 2 U.S.C. § 437g(a)(12)(A). Consequently, RBC’s fears of disclosure of information relating to alleged violations are groundless, and therefore, with respect to disclosure of such information, there is nothing to require remedying. Inasmuch as the audit process is merely a preliminary procedure which may lead to initial determinations that repayments are due or cause the FEC to initiate proceedings as to statutory violations, the audit report does not constitute a final determination for which due process would require an opportunity to be heard. The audit report merely is part of a fact-finding investigation, and as such, to afford RBC the full panoply of judicial procedures now would be premature, serving only the pursuit of delay. See, e. g. Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1514, 4 L.Ed.2d 1307 (1960). Still, the audit process leading to repayment determinations is replete with procedural protections. As noted above, after a campaign committee is given its interim audit report, FEC practice is to allow a 30 day period for written responses thereto, even though regulations require neither the presentation of this interim audit report to the campaign committees nor the opportunity to respond to it. McGarry Letter (Exhibit H to Complaint), at 2. RBC was given not only the 30 day period to respond, but an extension of time (to August 11). Moreover, the materials submitted by a committee to the FEC as a part of this informal procedure are considered by the Audit Division in making recommendations to the Commission, and by the Commission as well before making its final determination, even" }, { "docid": "15696041", "title": "", "text": "are treated as two dif ferent functions under the statutory scheme and by the FEC in practice. FEC Chairman McGarry, in his August 4, 1981 letter to RBC counsel, Exhibit H to Complaint (McGarry Letter), explained to RBC the FEC’s interpretation of the law relevant to the audit procedure. He correctly distinguished the FEC’s enforcement function from its audit function by noting that findings concerning violations of federal election laws are governed by FECA, at 2 U.S.C. § 437g, while the FEC’s authority to make repayment determinations is derived from PECFA, at 26 U.S.C. § 9007(b). As such, Chairman McGarry correctly noted, the instant audit process was governed by PECFA, specifically 26 U.S.C. § 9007 and regulations promulgated thereunder. McGarry Letter at 1-2. It was at this point that Chairman McGarry explained to RBC the significance of the interim audit report, stating that: Although not required by statute or regulation, the issuance of an interim audit report and the opportunity to respond to such report are among several informal steps in the audit process. 4c ‡ ‡ ¡fc sk ♦ It has been Commission practice to allow committees of publicly-financed candidates a period of 30-days from receipt of an interim report to submit responses to matters contained in the report. Such responses are reviewed by the Audit Division prior to making any recommendations to the Commission, and are considered by the Commission before voting on the contents of the final audit report. Id. As such, it is clear that the interim report made available to RBC in June, 1981 and the final audit report that the FEC seeks to disclose are two different documents that in all probability will contain different material, inasmuch as the final audit report which would be made public would follow further submissions by RBC. In addition, Chairman McGarry specifically noted that, at the time of his letter, the Audit Division “ha[d] yet to make a recommendation for repayment” and that a certain dollar amount on the interim report represented a preliminary calculation which “should not be interpreted ■ as a Commission determination.” McGarry Letter, at" }, { "docid": "15696048", "title": "", "text": "that the final audit report must be made confidential. RBC also cites a provision of PECFA in reinforcement of its argument that confidentiality is required, which provides that “It shall be unlawful for any individual to disclose any information obtained under the provisions of this chapter except as may be required by law.” 26 U.S.C. § 9012(g)(1). RBC argues that, with respect to information obtained in the course of the audit procedure under 26 U.S.C. § 9007, PECFA, at 26 U.S.C. § 9009(a), authorizes disclosure only to Congress, and that such disclosure is limited to the amount of payments required and the reasons therefor. The FEC, however, contends that audit reports are in fact required by law to be made public, pointing to FOIA and section 9009(a) of PECFA. Certainly, it is difficult to find a mandate of confidentiality in section 9009(a). This section requires the FEC after each election to submit reports to Congress as to financial data of campaign committees receiving funds under PECFA. Nowhere does the statute suggest that Congress is to keep such reports confidential, and since the information that is the subject of these reports to Congress does not involve conciliation efforts or notifications or investigations under section 437g of FECA, neither do the provisions under that section compel Congress to guard the confidentiality of these reports. Indeed, the fact that each report submitted under section 9009(a) is required under that statute to be “printed as a Senate document” compels the conclusion that such reports were intended by Congress to be open to public view. Clearly, section 9009(a) evinces a purpose on the part of Congress to allow taxpayers who chose to direct a portion of their taxes to the Presidential Election Campaign Fund to know exactly how those tax monies are being spent. See, H.Conf.Rept. 92-708, 92d Cong., 2d Sess., 117 Cong.Rec. 44783 (Dec. 4, 1971), reprinted in [1971] U.S.Code Cong. & Admin.News 2077 (concerning requirement of all candidates to furnish periodic expenditure statements that would be made public by the Comptroller General). Yet the interests protected by PECFA do not stop at the" }, { "docid": "15696030", "title": "", "text": "the Commission’s determination, a further 30 day extension of such time available upon request by the candidate and grant by the Commission. 11 C.F.R. § 9007.2(c). The Commission must consider any such submittals by a candidate in making its final determination on the repayment question, which determination must contain a written statement of reasons for the recommendation made. 11 C.F.R. § 9007.2(d), (e). Judicial review of a final determination on this issue is available by appeal to the United States Court of Appeals for the District of Columbia Circuit. 26 U.S.C. § 9011(a). If the audit process should uncover information indicating a violation of PECFA (i. e., the knowing and willful incurring of excess expenditures, acceptance of certain contributions to defray expenses, making unauthorized expenditures and contributions, and the like as noted at 26 U.S.C. § 9012) or FECA, such information may be used in the enforcement process under FECA, at 2 U.S.C. § 437g. However, information relating to any notification or investigation under § 437g must remain confidential. 2 U.S.C. § 437g(a)(12)(A). In the matter at hand, the FEC is not near its final determination on the question of repayment. The FEC commenced its audit report of RBC pursuant to 26 U.S.C. § 9007 on January 28, 1981. Defendant’s Statement of Facts Not in Dispute, ¶ 6. On March 27, 1981, the Audit Division of the FEC held an “exit conference” with officials and attorneys of RBC at which they discussed the Audit Division’s preliminary findings. Id. The same findings were expressed in the Audit Division’s “interim report,” which was delivered to RBC on June 19, 1981. Id.; Complaint, ¶ 15. In the letter accompanying the report, the Assistant Staff Director for the Audit Division informed RBC that it would have 30 days to respond to the findings of the auditors, after which time the audit staff would present a “final audit report” to the Commission for its approval and for subsequent public release. Exhibit A to Complaint; Defendant’s Statement of Facts Not in Dispute, ¶ 6. On July 6, 1981, RBC asked for a 30 day extension of" }, { "docid": "12285202", "title": "", "text": "(3) documents procured by Reagan pursuant to requests under the Freedom of Information Act, 5 U.S.C. § 552 et seq. With respect to Reagan’s state court lawsuit, it is clear that the allegations disclosed there were publicly disclosed. “Any information disclosed through civil litigation and on file with the clerk’s office should be considered a public disclosure of allegations in a civil hearing for the purposes of section § 3730(e)(4)(A)” and “[tjhis includes civil complaints”. Fed. Recovery Serv., Inc., 72 F.3d at 450 (quoting United States ex rel. Siller v. Becton Dickinson & Co., 21 F.3d 1339, 1350 (4th Cir.1994)). We will therefore move to the second method of disclosure at issue here, which requires more discussion. With respect to the BCBS audits and the HFCA investigation, the district court held that the information that formed the basis of Reagan’s qui tam suit had been publicly disclosed through both the audits and the HFCA investigation. Specifically, the district court concluded that the BCBS audit was central to the issue of whether UPH and ETMC were “related entities” and that the HFCA investigations resulted in public disclosures. Thus, according to the district court, these audits and investigations put the government “on the trail” of the alleged fraud. Reagan argues that the BCBS audits and the HCFA investigation did not constitute a public disclosure within the meaning of 31 U.S.C. § 3730(e)(4), because the reports did not disclose both (1) the true state of facts and (2) that the defendants represented the facts to be something other than what they were. See United States ex rel. Minn. Ass’n of Nurse Anes thetists v. Allina Health Sys. Corp., 276 F.3d 1032, 1048-49 (8th Cir.2002). The record fails to support this contention. The core of Reagan’s complaint is that ETMC and UPH were related entities, so they should not have been reimbursed by Medicare for anything other than the actual cost of the goods and services sold to one another. In cost reports submitted from 1985 to 1990, UPH claimed that it was not related to any East Texas entity. In 1987 — four" }, { "docid": "15696044", "title": "", "text": "part of a fact-finding investigation, and as such, to afford RBC the full panoply of judicial procedures now would be premature, serving only the pursuit of delay. See, e. g. Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1514, 4 L.Ed.2d 1307 (1960). Still, the audit process leading to repayment determinations is replete with procedural protections. As noted above, after a campaign committee is given its interim audit report, FEC practice is to allow a 30 day period for written responses thereto, even though regulations require neither the presentation of this interim audit report to the campaign committees nor the opportunity to respond to it. McGarry Letter (Exhibit H to Complaint), at 2. RBC was given not only the 30 day period to respond, but an extension of time (to August 11). Moreover, the materials submitted by a committee to the FEC as a part of this informal procedure are considered by the Audit Division in making recommendations to the Commission, and by the Commission as well before making its final determination, even though, again, nothing in the regulations or statutes requires the FEC to allow such submittals. After an initial repayment determination is made, regulations provide for 30 days (and a possible 30 day extension) to make additional submittals in writing in the event that the campaign committee disputes the FEC’s initial determination. 11 C.F.R. § 9007.2(c). Any materials submitted under 11 C.F.R. § 9007.2(c) must be considered by the FEC in making its final determination. 11 C.F.R. § 9007.2(d). That final determination must include a statement in writing for the FEC’s action, 11 C.F.R. § 9007.2(e), and is, as noted above, reviewable in the Court of Appeals. 26 U.S.C. § 9011(a). Consequently, the statutory audit procedure furnishes RBC with sufficient input comporting with the requirements of due process. Moreover, should the information in the audit procedure lead toward enforcement of violations under FECA, the law provides for adequate notice of allegations of such violations, see, 2 U.S.C. § 437g(a)(2), and an opportunity to resolve the matter by informal methods of conference and conciliation, 2 U.S.C. §" }, { "docid": "15696049", "title": "", "text": "keep such reports confidential, and since the information that is the subject of these reports to Congress does not involve conciliation efforts or notifications or investigations under section 437g of FECA, neither do the provisions under that section compel Congress to guard the confidentiality of these reports. Indeed, the fact that each report submitted under section 9009(a) is required under that statute to be “printed as a Senate document” compels the conclusion that such reports were intended by Congress to be open to public view. Clearly, section 9009(a) evinces a purpose on the part of Congress to allow taxpayers who chose to direct a portion of their taxes to the Presidential Election Campaign Fund to know exactly how those tax monies are being spent. See, H.Conf.Rept. 92-708, 92d Cong., 2d Sess., 117 Cong.Rec. 44783 (Dec. 4, 1971), reprinted in [1971] U.S.Code Cong. & Admin.News 2077 (concerning requirement of all candidates to furnish periodic expenditure statements that would be made public by the Comptroller General). Yet the interests protected by PECFA do not stop at the public’s right to know how tax monies are distributed, but also embrace a concern for openness and accountability to the public in the operation of Presidential campaigns. The legislative history of PECFA demonstrates that allowing the voting public the opportunity for greater scrutiny of political campaigns was an equally important purpose of the act. Senator Pastore, a leading proponent of the bill that established the act, described the act thus: “. . . it requires frequent reporting and disclose [sic] of contributions and expenditures by candidates and their committees so that the electorate may know the source of a candidate’s campaign funds and their distribution.” 117 Cong.Rec. 41762 (Nov. 17, 1971). As was likewise noted during the same Congressional debates preceding enactment of the act, “the people of this Nation are demanding to know the sources of campaign financing, and they have a right to know from whence comes the ‘mother’s milk of politics.’ ” Id., at 41767 (remarks of Sen. Bentsen). Finally, as the FEC points out, the audit report, as a document created" }, { "docid": "15696027", "title": "", "text": "and “to [submit to] an audit and examination by the Commission under Section 9007 and to pay any amounts required to be paid under such section.” Letter from the Honorable Ronald Reagan and the Honorable George Bush to the Commission, July 18, 1980 (Exhibit 1 to Defendant’s Opposition to Plaintiffs’ Motion for a Preliminary Injunction). These conditions are prerequisites to eligibility to receive funds under PECFA. 26 U.S.C. § 9003(a). The FEC is the agency responsible for administering the provisions of the two acts. The two acts have different, but related purposes. PECFA establishes a fund for Presidential candidates’ campaigns from tax monies. The act provides a scheme by which candidates are determined to be eligible for payments from the fund and sets forth standards to determine when candidates have received more than their fair share of monies from the fund and must make repayments. 26 U.S.C. §§ 9001 et seq. FECA, on the other hand, does not concern the disbursement of campaign funds to candidates, but regulates the organization and operation of campaigns, by, inter alia, requiring certain organizational and financial reports, and prohibiting or limiting certain campaign contributions. 2 U.S.C. §§ 431 et seq. The FEC derives authority from PECFA to conduct audits and examinations to determine whether repayments are due under that act. 26 U.S.C. § 9007. Its authority to enforce violations of PECFA (e. g., knowing and willful failures to comply with the payment conditions, see, 26 U.S.C. § 9012) and of FECA is found in FECA, at 2 U.S.C. § 437g. The audit report in question is a product of the examining and auditing process under PECFA, rather than of the enforcement procedure under FECA. The audit process begins after each Presidential election, when the Commission is required to conduct an examination and audit of the qualified campaign expenses of the candidates of each political party for President and Vice President. 26 U.S.C. § 9007(a); 11 C.F.R. § 9007.1. The audit serves to determine whether the candidate has been paid from the Campaign Fund more than he was entitled to receive under section 9004 of" }, { "docid": "11492266", "title": "", "text": "of FECA, and begin with the record keeping and auditing provisions that permit the Federal Election Commission to inspect the lists kept by political committees of individuals who contribute more than $10. These audit provisions neither explicitly nor implicitly authorize disclosure by the Commission of contribution records. Consequently, the confidential status of those records precludes any claim of real or threatened injury to plaintiffs’ First Amendment interests arising from public disclosure. We discern no basis in the statute for authorizing disclosure outside the Commission in the absence of probable cause to suspect a violation, and hence no substantial “inhibitory effect” operating upon plaintiffs at this time. Whether upon discovery of an apparent violation disclosure may be made as an incident of audit is a question that does not have sufficient “ripeness” at this time. The point of audit is soon enough to raise specific issues about the constitutionality of the audit provisions. As to the provisions for disclosure of contributions over $100, plaintiffs suggest that they do not disagree that the concept of disclosure is constitutional, but argue that the threshold values in FECA are too low, and therefore not minimally intrusive. We disagree. Since the individual contribution limit is set at $1000, disclosure limited to amounts in excess thereof would be tantamount to requiring those committing a crime to file reports of their offense. A disclosure law serves the function of informing the electorate, and must also function as an effective enforcement tool and loophole-closing device. Unless the disclosure threshold is set substantially below the contribution limit, patterns of giving (such as by all or most of the members of an interest group) will pass unnoticed. The legislature must have reasonable latitude as to where to draw the line. In this case, the legislature dispensed with routine reporting of contributions of $100 or less — an exemption that reaches a large percentage of contributions, permits substantial participation by those concerned with political privacy, and provides elbow room for parties to raise substantial funds from modest contributions. In view of these considerations, we have no basis for holding that this" }, { "docid": "10436694", "title": "", "text": "supra, at 2. Thus, we reject the Doe court’s definition of “public disclosure,” which forecloses many insiders from bringing qui tam actions, as contrary to the intent of the statute. Although Hughes raises the concern that our rule would open the floodgates to parasitic qui tam actions whenever the government audits a company, any such effect would be limited to a single lawsuit in each instance, since the first filing would constitute public disclosure sufficient to bar other claims based upon the audit. See United States ex rel. Kreindler & Kreindler v. United Technologies Corp., 985 F.2d 1148, 1157-58 (2d Cir.) (noting that the statute seeks to bar parasitic lawsuits), cert. denied, — U.S. —, 113 S.Ct. 2962, 125 L.Ed.2d 663 (1993). With this concern offset by Congress’s desire to avoid total reliance on government enforcement, we hold that disclosure to company employees does not constitute public disclosure. B. Disclosure through the FOIA Although Hughes does not dispute that certain classified reports underlying Schumer’s claims were not available to the public, Hughes argues that three unclassified government audits by the Defense Contract Audit Agency (“DCAA”) were publicly disclosed because they were potentially available to any member of the public who filed a request for release of the audits under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Hughes' argues that because the regulations provide that “[r]ecords not specifically exempt from disclosure under the [FOIA] shall, upon request, be made accessible to the public,” 32 C.F.R. § 286.7(b), unclassified documents are necessarily publicly disclosed. Hughes relies on an analogy to precedent holding that allegations made available through the discovery process are deemed publicly disclosed. See Kreindler, 985 F.2d at 1158 (holding that discovery material contained in unsealed court records was “publicly disclosed”); United States ex rel. Stinson, Lyons, Gerlin & Bustamante v. Prudential Ins. Co., 944 F.2d 1149, 1155-56 (3d Cir.1991). In Stinson, the Third Circuit held that because the FCA seeks “to preclude qui tam suits based on information that would have been equally available to strangers to the fraud transaction had they chosen to look for it,”" }, { "docid": "16488917", "title": "", "text": "investigation is made” — speaks directly to the question at issue by prohibiting the release of investigatory file materials in both open and closed cases. For its part, the Commission asserts that the term “investigation” refers only to the act of investigating a complaint, not to the fruits of the inquiry. According to the Commission, once a pending , investigation has closed and later stages of the enforcement process have implicitly revealed the fact that the Commission engaged in the act of investigation, the statute simply does not address the confidentiality of related files. As we read subsection (a)(12)(A), we cannot agree with the AFL-CIO that the term “investigation” unambiguously encompasses files compiled during a Commission proceeding. All other uses of “investigation” in section 437g(a) refer to a fact-finding process, not to materials compiled during that process. See 2 U.S.C § 437g(a)(l) (Commission “may not conduct any investigation or take any other action” based solely on anonymous complaints); id. § 437g(a)(2) (Commission “shall make an investigation of ... [an] alleged violation, which may include a field investigation or audit,” upon a finding of “reason to believe”); id. § 437g(a)(ll) (Commission may petition to hold a party in civil contempt if it “determines after an investigation” that the party violated a court order). Moreover, we think it telling that in contrast to subsection (a)(12)(A), section 437g(a)’s other confidentiality provision expressly protects information revealed in the course of Commission enforcement actions. Specifically, subsection (a)(4)(B)(i) forbids the disclosure of both “action[s] by the Commission or any person ... in connection with any conciliation attempt” and “information derived” in connection with such attempts. Id. § 437g(a)(4)(B)(i). Finally, the fact that subsection (a)(12)(A) permits disclosure upon written consent of “the person with respect to whom such investigation is made” without addressing the interests of third party witnesses who have provided confidential materials to investigators also implies that Congress was concerned about protecting the targets of Commission investigations, not the agency’s sources of information. The AFL-CIO argues that its interpretation is supported by viewing subsection (a)(12)(A) in the context of section 437g(a)’s larger structure, but we" }, { "docid": "15696029", "title": "", "text": "the Act and should make repayments to the Fund. 26 U.S.C. 9007(b); 11 C.F.R. § 9007.2. An interim audit report, not required by statute or regulation, is presented to each can didate’s campaign committee, with an opportunity to respond thereto, under an informal practice established by the FEC. Letter from FEC Chairman McGarry to Counsel for RBC, August 4, 1981 (Exhibit H to Complaint). Upon completion of the final audit, which may or may not contain a determination that repayments are appropriate, the Commission is required to notify the candidates whether such repayments will be required. 26 U.S.C. § 9007(b)(2); 11 C.F.R. § 9007.-2(a). A candidate found to be owing repayments must make such repayments within 30 days of receiving notice thereof from the Commission, but may request a 90 day extension of the repayment period. 11 C.F.R. § 9007.2(b). Moreover, if a candidate disputes the finding that repayments are due, he is afforded the opportunity to present to the Commission his arguments to the contrary, in writing, within 30 days of the issuance of the Commission’s determination, a further 30 day extension of such time available upon request by the candidate and grant by the Commission. 11 C.F.R. § 9007.2(c). The Commission must consider any such submittals by a candidate in making its final determination on the repayment question, which determination must contain a written statement of reasons for the recommendation made. 11 C.F.R. § 9007.2(d), (e). Judicial review of a final determination on this issue is available by appeal to the United States Court of Appeals for the District of Columbia Circuit. 26 U.S.C. § 9011(a). If the audit process should uncover information indicating a violation of PECFA (i. e., the knowing and willful incurring of excess expenditures, acceptance of certain contributions to defray expenses, making unauthorized expenditures and contributions, and the like as noted at 26 U.S.C. § 9012) or FECA, such information may be used in the enforcement process under FECA, at 2 U.S.C. § 437g. However, information relating to any notification or investigation under § 437g must remain confidential. 2 U.S.C. § 437g(a)(12)(A). In the" }, { "docid": "15696024", "title": "", "text": "MEMORANDUM OPINION JOYCE HENS GREEN, District Judge. This is an action by the Reagan Bush Committee and the Reagan Bush Compliance Fund (collectively, RBC), two cam paign committees of the Republican Presidential and Vice-Presidential candidates in the 1980 election to enjoin defendant, the Federal Election Commission (FEC), from withholding certain documents assertedly required to be disclosed under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), and from making any public disclosure of certain reports relating to audits of RBC conducted by the FEC before RBC is afforded an adequate hearing with respect to the subject of the audit and related matters pending before the FEC. A hearing on the preliminary injunction sought by RBC was consolidated with the trial on the merits and held on October 21, 1981. The FEC has moved to dismiss the cause for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted, or, in the alternative, for summary judgment. RBC has moved for partial summary judgment, asking that the Court enter an order precluding the FEC from rendering and publishing an interim determination on allegations and recommendations pending before the Commission with respect to any violations of federal election laws RBC may be charged with having committed, or any repayments of campaign funds that the FEC may order RBC to make, without first providing RBC the hearing it seeks. Because it is clear that the FEC has not withheld any documents from RBC improperly and that the report the FEC plans to disclose cannot by law contain information concerning violations of election laws and, in any event, is not a final determination of liability (continued input into the process and judicial review still to be available to RBC at subsequent stages of the administrative procedure), dismissal without prejudice as to the FOIA request and summary judgment as to the application for injunctive relief against public disclosure of the audit report will be granted to the FEC and RBC’s motion for partial summary judgment will be denied. Some discussion of the background of this case is necessary" } ]

[ { "docid": "16957296", "title": "", "text": "to provide billing and collection services in connection with operator-assisted calls. We review claims such as petitioners’ with great deference to the agency: Review under the arbitrary and capricious tag line ... encompasses a range of levels of deference to the agency, and ... an agency’s refusal to institute rulemaking proceedings is at the high end of the range. Such a refusal is to be overturned only in the rarest and most compelling of circumstances, which have primarily involved plain errors of law, suggesting that the agency has been blind to the source of its delegated power. American Horse Protection Ass’n v. Lyng, 812 F.2d 1, 4-5 (D.C.Cir.1987) (citations and internal quotation marks omitted). Indeed, our most recent case to address the issue found that agency refusals to initiate rule-making proceedings are reviewed “with a deference so broad as to make the process akin to non-reviewability.” Cellnet Communication, Inc. v. FCC, 965 F.2d 1106, 1111 (D.C.Cir.1992). In Cellnet, we reviewed the FCC’s denial of a petition to expand a rulemaking proceeding into an inquiry into competitive conditions in the cellular service industry. We treated the petition as “functionally similar to a petition to initiate a rulemaking.” Id. We concluded that the petitioner had failed to overcome the extreme deference owed the agency because it had failed to provide evidence “of widespread anticompetitive practices ... so overwhelmingly prevalent that it was irrational for the FCC to withhold the proposed broad inquiry while pursuing the narrower ones now launched.” Id. at 1112 (emphasis added). On reviewing the challenges to the FCC on appeal in this case, we find that here, as in Cellnet, petitioners have failed to establish such obvious abuses of monopoly power as to render the Commission’s actions irrational. Admittedly, the Commission provided no more than a sparse explanation of its refusal to initiate the requested proceeding. The CNS/CompTel petition requested that “all LECs [be required] to provide billing and collection services on a nondiscriminatory basis, at just and reasonable rates under the authority of Title I” of the Communications Act. Validation Order, 7 F.C.C.R. at 3537 n. 102 (describing" } ]

[ { "docid": "2705131", "title": "", "text": "1981, the Drivers’ petition was denied. This petition for review followed. II. Analysis A. Standard of Review As this case involves informal rule-making, the proper standard for judicial review is contained in 5 U.S.C. § 706(2)(A)-(D) (1976). This standard of review requires a court to set aside agency action which is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” Id. § 706(2)(A). Camp v. Pitts, 411 U.S. 138, 140-42, 93 S.Ct. 1241, 1243-44, 36 L.Ed.2d 106 (1973); Action for Children’s Television v. FCC, 564 F.2d 458, 478-79 (D.C.Cir.1977). Descriptions of the “arbitrary and capricious” standard emphasize that while such review is “searching and careful,” it must also be circumspect. The reviewing court must be cautious not to substitute its judgment for that of the agency. The court’s task is to discern whether the relevant factors were considered and whether the ultimate decision reflects reasoned decision-making. We have previously reviewed an agency decision not to amend existing regulations. Natural Resources Defense Council v. SEC, 606 F.2d 1031 (1979); Action for Children’s Television v. FCC, supra. The threshold consideration in exercising judicial review under these circumstances is to determine whether the action is in fact amenable to review. Cognizant of the factors considered in prior opinions which counsel against review of these discretionary agency decisions, we determine that the decisions challenged herein are reviewable. Our review is, however, limited. The circumscribed scope of this review is dictated by both the nature of the administrative proceeding (informal rulemaking) and by the nature of the ultimate decision (not to promulgate rules). The record in an informal rulemaking proceeding is “a less than fertile ground for judicial review” and has been described as a “sump in which the parties have deposited a sundry mass of materials.” National Resources Defense Council, supra, 606 F.2d at 1052. Thus, the practical realities constrain our review. Furthermore, rulemaking is an inherently policy-oriented process and the agency must be accorded considerable deference in evaluating information presented and reaching decisions based upon its expertise. Our review is also circumscribed by the fact that the agency" }, { "docid": "14952490", "title": "", "text": "formalities, including a public explanation. Chaney therefore does not appear to overrule our prior decisions allowing review of agency refusals to institute rulemakings. The District Court was thus correct in finding that this case requires a determination of whether the Secretary’s failure to act was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” under 5 U.S.C. § 706(2)(Á) (1982). American Horse Protection Association v. Block, No. 84-3298, mem. op. at 14 (D.D.C. Oct. 30, 1985) (hereinafter AHPA), J.A. at 16, 29. Review under the “arbitrary and capricious” tag line, however, encompasses a range of levels of deference to the agency, see WWHT, Inc. v. FCC, 656 F.2d 807, 817 (D.C.Cir.1981), and Chaney surely reinforces our frequent statements that an agency’s refusal to institute rule-making proceedings is at the high end of the range, see ITT World Communications, Inc. v. FCC, 699 F.2d 1219, 1245-46 (D.C.Cir.1983), rev’d on other grounds, 466 U.S. 463, 104 S.Ct. 1936, 80 L.Ed.2d 480 (1984); Professional Drivers Council v. Bureau of Motor Carrier Safety, 706 F.2d 1216, 1221 (D.C.Cir.1983). Such a refusal is to be overturned “only in the rarest and most compelling of circumstances,” WWHT, 656 F.2d at 818, which have primarily involved “plain errors of law, suggesting that the agency has been blind to the source of its delegated power,” State Farm Mutual Automobile Insurance Co. v. Department of Transportation, 680 F.2d 206, 221 (D.C.Cir.1982), vacated on other grounds, 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). In these, as in more typical reviews, however, we must consider whether the agency’s decisionmaking was “reasoned.” See Professional Drivers Council, 706 F.2d at 1220. See also id. at 1220-21 (the court must assure itself that the agency considered the relevant factors, that it explained the “facts and policy concerns” relied on, and that the facts have some basis in the record). Cf. Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 52, 103 S.Ct. 2856, 2871, 77 L.Ed.2d 443 (1983) (considering rule rescission to determine whether it was “the product of reasoned decisionmaking”). Finally," }, { "docid": "11878727", "title": "", "text": "reconsideration for abuse of discretion. Flynn, 481 F.3d at 829. A. Emergency Rulemaking Petition Defenders of Wildlife, The Humane Society of the United States, Ocean Conservancy, and Regina Asmutis-Silvia now appeal the district court’s denial of their challenge to NMFS’s denial of the petition for emergency rulemaking on the ship strike issue. Appellants claim that the district court failed to recognize that NMFS’s September 2005 denial of the emergency petition was arbitrary and capricious in light of the admitted need for ship speed regulations and the agency’s ESA section 7(a)(1) duty to protect right whales through its programming. We affirm the district court’s grant of summary judgment on the challenge to the agency’s denial of the petition. We begin by noting that “an agency’s refusal to institute rulemaking proceedings is at the high end of the range” of levels of deference we give to agency action under our “arbitrary and capricious” review. Am. Horse Prot. Ass’n, 812 F.2d at 4-5. Where, as here, “the proposed rule pertains to a matter of policy within the agency’s expertise and discretion, the scope of review should ‘perforce be a narrow one, limited to ensuring that the Commission has adequately explained the facts and policy concerns it relied on and to satisfy ourselves that those facts have some basis in the record.’ ” WWHT, Inc. v. FCC, 656 F.2d 807, 817 (D.C.Cir.1981) (quoting Natural Res. Def. Council, Inc. v. SEC, 606 F.2d 1031, 1053 (D.C.Cir.1979)). In other words, we look to see whether the agency employed reasoned decisionmaking in rejecting the petition. See Am. Horse Prot. Ass’n, 812 F.2d at 5 (quoting Prof'l Drivers Council v. Bureau of Motor Carrier Safety, 706 F.2d 1216, 1220 (D.C.Cir.1983)). In analyzing appellants’ arguments, we would like to clarify the record on review. We recognize that certain events occurred after the agency’s September 2005 denial of the emergency rulemaking petition that may cast doubt on the reasoning put forward in that denial. Most significant among these subsequent events (or omissions) is that — despite the issuance of a proposed ship strike rule in June 2006 (after appellants moved" }, { "docid": "8441372", "title": "", "text": "competing interests. Id. As no second petition would likely be filed following a rulemaking that favored a competing proposal, there is no commensurate saving of agency resources to justify such an agency compromise. In light of this rationale, we cannot find that the Commission’s policy constitutes an abuse of agency discretion. The result of the Commission’s refusal to accept late filings in the present case is, of course, the denial of first local service to Santa Isabel. However, while provision of first local service is a Commission priority, see Pasadena Broadcasting Co. v. FCC, 555 F.2d 1046, 1050-51 (D.C.Cir.1977), it cannot be sought at the expense of all procedural requirements. See, e.g., North Texas Media, Inc. v. FCC, 778 F.2d 28 (D.C.Cir.1985) (FCC not required to waive mileage separation rule, even where denial prevented provision of first local service); Sotomayor v. FCC, 721 F.2d 1408 (D.C.Cir.1983) (FCC not required to waive minimum distance requirements where waiver would enable first local service). In reviewing the Commission’s decision to terminate rulemaking proceedings, we offer great deference to the Commission’s authority. Compare National Ass’n of Regulatory Utility Commissioners v. Dep’t of Energy, 851 F.2d 1424, 1430 (D.C.Cir.1988) (“[A]n Agency's refusal to institute rulemaking proceedings is at the high end of the range [of judicial deference].”) (quoting American Horse Protection Ass’n v. Lyng, 812 F.2d 1, 4 (D.C.Cir.1987)). As the petitioners have failed to show that the Commission’s decision is unreasonable or inconsistent with prior FCC policy for accepting late-filed comments) we must defer to the Commission’s decision to dismiss the rulemaking petition. For the preceding reasons, the FCC’s decision to dismiss this rulemaking petition is therefore AFFIRMED." }, { "docid": "14361861", "title": "", "text": "The split decision of a panel of this court in Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584 (D.C.Cir.1971), relied upon a statement by the agency making the very finding that triggered mandatory enforcement action under the governing statute; and while reviewing the generalized standard of proof which the agency had estab lished for the exercise of its discretion, the court pointedly declined to review its finding as to whether that standard had been met. 439 F.2d at 595-96. (In the instant case, by contrast, the agency has made a finding that there is no “serious danger to the public health dr ... blatant scheme to defraud,” Letter from the Commissioner at 3, Jt.App. at 88, and it is this finding which the majority claims power to review.) The panel decisions of this court in Natural Resources Defense Council, Inc. v. SEC, 606 F.2d 1031 (D.C.Cir.1979), and WWHT, Inc. v. FCC, 656 F.2d 807 (D.C.Cir.1981), are not apposite, since they involved refusal to conduct rulemaking, rather than enforcement discretion in the sense of a refusal to proceed against alleged law violators.. And even in that context, the dicta of these cases do not support a presumption of reviewability in the sense here at issue. Natural Resources Defense Council states that the totality of § 701(a) (which reads “This chapter applies, according to the provisions thereof, except to the extent that — (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law”) creates a “strong presumption of reviewability,” 606 F.2d at 1043. Undoubtedly so. But that does not suggest that the presumption applicable to the totality of agency action is applicable to the narrow category of action consisting of refusal to adopt rules. To the contrary, the opinion makes it clear that with respect to that category “the relevant factors incline against reviewability,” id. at 1047. As for WWHT, its dicta (which again are applicable only to the weaker case of refusal to adopt rules) are based upon a terminology which resolves the problems at issue here under the rubric of “scope of review”" }, { "docid": "17874969", "title": "", "text": "Inc. v. EPA, 869 F.2d 975, 981-82 (6th Cir.1989) (disclaiming jurisdiction where EPA had refused to perform nondiscretionary responsibility to propose comprehensive sludge management regulations); Pennsylvania Dep’t of Envtl. Resources v. EPA, 618 F.2d 991, 995 (3d Cir.1980) (declining section 1369 jurisdiction over suits to compel EPA to perform nondiscretionary duty to promulgate new source performance standards applicable to post-mining discharges). In these cases, the EPA had failed to issue the disputed regulations at all. In the instant case, the EPA has both issued and revised its regulations, but Mr. Maier contends it has abused its discretion by declining to initiate rulemaking again in light of new information. Both parties agree that the timing of any revision is discretionary. Mr. Maier does not contend the EPA has failed to comply with a nondiscretionary duty, and thus a district court could not exercise jurisdiction over his claim under section 1365. We therefore hold that we have jurisdiction over the instant case under section 1369. III. A. We review an agency’s refusal to initiate revisory rulemaking to determine if the agency’s refusal was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Oklahoma v. EPA, 908 F.2d 595, 598 (10th Cir.1990), rev’d on other grounds sub nom. Arkansas v. Oklahoma, 503 U.S. 91, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992). Although our inquiry into the basis of the agency’s action will be searching and careful, our review is ultimately a narrow one. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971). Review under the “arbitrary and capricious” standard “encompasses a range of levels of deference to the agency.” American Horse Protection Ass’n v. Lyng, 812 F.2d 1, 4 (D.C.Cir.1987) (AHPA) (citing WWHT, Inc. v. FCC, 656 F.2d 807, 817 (D.C.Cir.1981)); accord Brown v. Secretary of Health and Human Servs., 46 F.3d 102, 110 (1st Cir.1995). In determining the appropriate level of deference, we heed the nature and context of the challenged agency action or inaction. Substantial prudential concerns counsel particularly broad" }, { "docid": "14952489", "title": "", "text": "specific facts of individual cases. Furthermore, the Administrative Procedure Act (“APA”) serves to distinguish between Chaney nonenforcement decisions and refusals to institute rulemakings. The Chaney Court noted that “when an agency does act to enforce, that action itself provides a focus for judicial review” since a court can “at least ... determine whether the agency exceeded its statutory powers.” 470 U.S. at 832,105 S.Ct. at 1656 (emphasis in original). APA provisions governing agency refusals to initiate rulemakings give a similar focal point. The APA requires agencies to allow interested persons to “petition for the issuance, amendment, or repeal of a rule,” 5 U.S.C. § 553(e) (1982), and, when such petitions are denied, to give “a brief statement of the grounds for denial,” id. § 555(e). These two provisions suggest that Congress expected that agencies denying rulemaking petitions must explain their actions. Thus, refusals to institute rulemaking proceedings are distinguishable from other sorts of nonenforcement decisions insofar as they are less frequent, more apt to involve legal as opposed to factual analysis, and subject to special formalities, including a public explanation. Chaney therefore does not appear to overrule our prior decisions allowing review of agency refusals to institute rulemakings. The District Court was thus correct in finding that this case requires a determination of whether the Secretary’s failure to act was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” under 5 U.S.C. § 706(2)(Á) (1982). American Horse Protection Association v. Block, No. 84-3298, mem. op. at 14 (D.D.C. Oct. 30, 1985) (hereinafter AHPA), J.A. at 16, 29. Review under the “arbitrary and capricious” tag line, however, encompasses a range of levels of deference to the agency, see WWHT, Inc. v. FCC, 656 F.2d 807, 817 (D.C.Cir.1981), and Chaney surely reinforces our frequent statements that an agency’s refusal to institute rule-making proceedings is at the high end of the range, see ITT World Communications, Inc. v. FCC, 699 F.2d 1219, 1245-46 (D.C.Cir.1983), rev’d on other grounds, 466 U.S. 463, 104 S.Ct. 1936, 80 L.Ed.2d 480 (1984); Professional Drivers Council v. Bureau of Motor Carrier Safety, 706 F.2d" }, { "docid": "11878726", "title": "", "text": "motion for the same de novo. See Flynn v. Dick Corp., 481 F.3d 824, 828 (D.C.Cir.2007). We also apply the same standard of review applicable to the underlying claims in the district court. Id. at 828-29. We review National Marine Fisheries Service’s denial of the emergency rulemak-ing petition under the standards set forth in the Administrative Procedure Act; therefore, we must “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law....” 5 U.S.C. § 706(2)(A); see Am. Horse Prot. Ass’n v. Lyng, 812 F.2d 1, 4 (D.C.Cir.1987) (holding that the appropriate standard to apply to a challenge to an agency decision on a rule-making petition is “arbitrary and capricious” review). The district court’s determination that it lacked jurisdiction to hear the challenges against the Coast Guard is a question of law, which we review de novo. See Munsell v. Dep’t of Agric., 509 F.3d 572, 578 (D.C.Cir.2007). Finally, we review the district court’s denial of appellants’ motion for reconsideration for abuse of discretion. Flynn, 481 F.3d at 829. A. Emergency Rulemaking Petition Defenders of Wildlife, The Humane Society of the United States, Ocean Conservancy, and Regina Asmutis-Silvia now appeal the district court’s denial of their challenge to NMFS’s denial of the petition for emergency rulemaking on the ship strike issue. Appellants claim that the district court failed to recognize that NMFS’s September 2005 denial of the emergency petition was arbitrary and capricious in light of the admitted need for ship speed regulations and the agency’s ESA section 7(a)(1) duty to protect right whales through its programming. We affirm the district court’s grant of summary judgment on the challenge to the agency’s denial of the petition. We begin by noting that “an agency’s refusal to institute rulemaking proceedings is at the high end of the range” of levels of deference we give to agency action under our “arbitrary and capricious” review. Am. Horse Prot. Ass’n, 812 F.2d at 4-5. Where, as here, “the proposed rule pertains to a matter of policy within the agency’s" }, { "docid": "16792869", "title": "", "text": "give notice of denial of applications or petitions and “a brief statement of the grounds for denial,” id. § 555(e). The combination of these requirements suggests a legislative expectation that agencies either declining to initiate rulemaking, or delaying final promulgation on the sort of theory alleged here, must reveal their thought processes. That expectation in turn suggests that courts may review such determinations for errors of law. In sum, I find noninstitution of a rule-making distinguishable from nonenforcement decisions in that the former tend to be (1) less frequent, (2) more typically fraught with legal analysis (and therefore potential legal error), and (3) characteristically accompanied by public justification under the APA. Thus I believe that Chaney does not overturn prior decisions allowing review of agency decisions not to initiate rulemakings and, by inference, decisions of the sort the Secretary has made here. Our cases, however, have rightly emphasized the high degree of deference to which a decision not to initiate rulemaking is entitled, see ITT World Communications, Inc. v. FCC, 699 F.2d 1219, 1245-46 (D.C.Cir. 1983), rev’d on other grounds, 466 U.S. 463, 104 S.Ct. 1936, 80 L.Ed.2d 480 (1984); Professional Drivers Council v. Bureau of Motor Carrier Safety, 706 F.2d 1216, 1221 (D.C.Cir.1983), and that such a refusal is to be overturned “only in the rarest and most compelling of circumstances,” WWHT, Inc. v. FCC, 656 F.2d 807, 818 (D.C.Cir.1981). Such judicial interventions, we have observed, “primarily involve plain errors of law, suggesting that the agency has been blind to the source of its delegated power.” State Farm Mutual Automobile Insurance Co. v. Department of Transportation, 680 F.2d 206, 221 (D.C. Cir.1982), vacated on other grounds, 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). This leaves open the scope of review of the Secretary’s discretion to delay promulgating a field sanitation standard in the hope of encouraging state action. See Majority Opinion (“Maj.Op.”) at 631. This exercise of discretion involves precisely the resource-allocation issue identified by the Court in Chaney as a reason for presuming unreviewability — the question whether health gains from OSHA enforcement will be" }, { "docid": "10897743", "title": "", "text": "Inc. v. FCC, 656 F.2d 807, 815 (D.C.Cir.1981); National Ass’n of Postal Supervisors v. United States Postal Service, 602 F.2d 420, 430 (D.C.Cir.1979). See also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971). In Natural Resources Defense Council, Inc. v. SEC, 606 F.2d 1031 (D.C.Cir.1979), this court outlined three criteria for identifying those cases in which this presumption of reviewability is overcome. Actions are committed to agency discretion where there is little need to safeguard petitioner’s interests, review would impair the effectiveness of agency administration, and the disputed issue is not appropriately drawn for judicial review. Id. at 1044. The case at hand fulfills none of these criteria and is accordingly reviewable. First, petitioners have asserted a violation of a statutorily defined legal right and have identified a concrete injury resulting from that violation. Petitioners contend that the Commission’s arbitrary refusal to issue declaratory relief may require Intercity and Exide to pursue remedies perhaps less economical and expert than declaratory relief. See infra note 9. Moreover, petitioners note that uncertainty regarding the appropriate commodity classification may increase the risk of litigation. Petitioners thus allege both a violation of a specific legal right and a resultant injury, neither of which can be remedied without judicial review. Second, review in this case will not hinder the effectiveness of agency administration. The scope of our review is necessarily narrow. We may examine the Commission’s exercise of discretion, not to evaluate the wisdom of its policy judgment, but only to guard against arbitrary and capricious decisionmaking. See WWHT, Inc. v. FCC, 656 F.2d 807, 817 (D.C.Cir.1981). Such limited review of Commission refusals to institute declaratory order proceedings will not unduly hinder the Commission’s regulation of interstate commerce. See Natural Resources Defense Council, Inc., 606 F.2d at 1044. Third, the issue before us is entirely appropriate for judicial review. Section 706(2)(A) of the APA expressly authorizes this court to ensure that the exercise of agency discretion is not without a rational basis. 5 U.S.C. § 706(2)(A) (1982); WWHT, Inc. v. FCC, 656 F.2d" }, { "docid": "8722143", "title": "", "text": "that provided the basis for the study could have been used to perform a separate study on assets among AFDC recipients. Yet, at the time the regulations were promulgated, such a study had not been performed and, according to the Secretary, would have consumed a tremendous amount of scarce resources to perform. The Secretary was not required to use the most accurate data theoretically possible. It was not unreasonable for the Secretary to rely on the already-available study as an approximate measure of asset ownership among AFDC recipients, rather than commit agency resources to the performance of an additional, time-consuming study. . In support, plaintiffs submitted a report by Peter S. Fisher, an economist. The report was titled: An Economic Analysis of the AFDC $1,500 Motor Vehicle Equity Limit. . 5 U.S.C. § 553(c) (1988) reads, in relevant part: After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. . In Heckler v. Chaney, 470 U.S. 821, 825, 105 S.Ct. 1649, 1652, 84 L.Ed.2d 714 (1985), the Supreme Court held that an agency’s refusal to take ad hoc enforcement action is presumptively unreviewable. However, it has been held that the Heckler presumption does not apply to an agency's refusal to institute rulemaking. American Horse Protection Ass'n v. Lyng, 812 F.2d 1, 4-5 (D.C.Cir.1987). See also Heckler, 470 U.S. at 825 n. 2, 105 S.Ct. at 1652 n. 2 (expressly noting that the Court was not addressing review of an agency's refusal to institute rulemaking). . See, 1 Kenneth C. Davis & Richard J. Pierce, Administrative Law Treatise § 6.9, at 280 (3d ed. 1994): An agency can have any number of plausible reasons for declining to [undertake rulemak-ing], and courts are poorly positioned to evaluate the reasons most frequently given by agencies. These include an agency’s decision that ... the problem" }, { "docid": "14361860", "title": "", "text": "a general policy which is in effect an abdication of ... statutory duty,” and (3) the nonenforcement consisted not merely of inaction but of “affirmatively continuing] to channel federal funds to defaulting schools.” Id. at 1162 (emphasis in original). (The centrality of the second point was emphasized in our recent en banc decision of Adams v. Bell, 711 F.2d 161, 166, 167 & n. 35 (D.C.Cir.1983).) Nor are the panel opinions of this and other circuit courts cited by the majority any more probative of the novel assertion of a “presumption of reviewability” of enforcement decisions. None of them sets forth such a startling proposition, and all of them display special circumstances overcoming the usual presumption of nonreviewability. Thus, the case requiring an agency to enforce the restrictions of the Davis-Bacon Act (Carpet, Linoleum & Resilient Tile Layers, Local Union No. 419 v. Brown, 656 F.2d 564 (10th Cir.1981)) involved the third factor that we found operative in Adams v. Richardson, supra: the agencies were channeling federal funds to those in violation of the law. The split decision of a panel of this court in Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584 (D.C.Cir.1971), relied upon a statement by the agency making the very finding that triggered mandatory enforcement action under the governing statute; and while reviewing the generalized standard of proof which the agency had estab lished for the exercise of its discretion, the court pointedly declined to review its finding as to whether that standard had been met. 439 F.2d at 595-96. (In the instant case, by contrast, the agency has made a finding that there is no “serious danger to the public health dr ... blatant scheme to defraud,” Letter from the Commissioner at 3, Jt.App. at 88, and it is this finding which the majority claims power to review.) The panel decisions of this court in Natural Resources Defense Council, Inc. v. SEC, 606 F.2d 1031 (D.C.Cir.1979), and WWHT, Inc. v. FCC, 656 F.2d 807 (D.C.Cir.1981), are not apposite, since they involved refusal to conduct rulemaking, rather than enforcement discretion in the sense of a" }, { "docid": "15277685", "title": "", "text": "ban” proposal apparently did not emerge until well after the Commission had decided to address ATV risks through the “imminent hazard” action and ensuing Consent Decree. When the Commission voted in 1991 to terminate the rulemaking, the youth ban was still only one among several regulatory options CPSC held in reserve. Cf. Natural Resources Defense Council v. SEC, 606 F.2d 1031, 1047 (D.C.Cir.1979) (suggesting that when administrative record is “narrowly focused” on “particular rules,” judicial review of rulemaking termination appropriately may be more rigorous). In according a generous measure of respect to the Commission’s decision, we are mindful as well of the alternative course CPSC took. See Professional Drivers’ Council, 706 F.2d at 1221 (review of termination of rulemaking was “circumscribed” where agency had not “shirk[ed] its statutory duty by refusing to regulate”). By instituting the “imminent hazard” action, negotiating the comprehensive Consent Decree, and securing the dealer monitoring agreements, the Commission has taken meaningful action against ATV dangers generally, with harm to children a concern particularly addressed. We accord due respect, moreover, to an agency’s selection of means for pursuing policy goals. Such choices implicate the allocation of scarce administrative resources; they involve forecasts about the consequences of proposed regulatory actions and other matters the agency ordinarily is best equipped to judge. See National Wildlife Fed’n v. Environmental Protection Agency, 925 F.2d 470, 474-75 (D.C.Cir.1991); see also Heckler v. Chaney, 470 U.S. 821, 831-32, 105 S.Ct. 1649, 1655-56, 84 L.Ed.2d 714 (1985) (stating reasons for nearly complete judicial deference to agency’s decision not to bring enforcement action); Moog Industries, Inc. v. FTC, 355 U.S. 411, 413, 78 S.Ct. 377, 379, 2 L.Ed.2d 370 (1958) (deference to agency’s choice of remedies). In sum, the degree of deference we properly give to the Commission in this ease, while not “extreme,” is “very substantial.” C. The Rationality of the Commission’s Decision Applying the respectful review standard just explained, we leave undisturbed the Commission’s rulemaking termination and, specifically, CPSC’s decision against current deployment of a youth ban. As CPSC stated in its September 1991 rule-making termination notice, experience under the Consent Decree was" }, { "docid": "5853814", "title": "", "text": "shall be affirmed unless the court concludes that such action is arbitrary, capricious, or otherwise inconsistent with law.” SMCRA § 1276(a)(1). SMCRA § 1276(b) also states that except as provided in Section 1276(a): the findings of the Secretary if supported by substantial evidence on the record considered as a whole, shall be conclusive. The court may affirm, vacate, or modify any order or decision or may remand the proceedings to the Secretary for such further action as it may direct. APA § 706 has inspired many interpretations. As the D.C. Circuit court stated in WWHT, Inc. v. FCC, 656 F.2d 807, 817 (1981), “the parameters of the arbitrary and capricious standard of review [under APA § 706] will vary with the context of the case.” (Internal quotation marks omitted.) The court stressed, however, that “[i]t is only in the rarest and most compelling of circumstances that this court has acted to overturn an agency judgment not to institute a rulemaking.” Id. at 818. See also EMR Network v. Federal Communications Comm’n, 391 F.3d 269, 272-73 (D.C.Cir.2004) (citation omitted), cert. denied, EMR Network v. F.C.C., 545 U.S. 1116, 125 S.Ct. 2925, 162 L.Ed.2d 297 (2005) (same). Defendants urge the court to employ the most deferential standard of review. In fact, they believe the court must view OHA’s actions with deference so extreme that it is “akin to non-reviewability.” Memorandum in Support of Defendants’ Cross Motion at 15, quoting Cellnet Communication, Inc. v. FCC, 965 F.2d 1106, 1111 (D.C.Cir.1992). Defendants assert that in order to survive judicial scrutiny under this extremely deferential standard of review, an agency need only provide an “adequate response” to the concerns raised in a rulemaking petition. NMA v. DOI 1995, 70 F.3d at 1353. See also National Coal Ass’n v. JJram, 1994 WL 736422, at *4 (D.D.C. Sept. 16, 1994) (standard of review is “narrow” and rule must be affirmed if there is a “rational basis” for the agency’s decision). Defendants also take the position that deference to an administering agency “is particularly appropriate” when dealing with a “complex regulatory statute” such as SMCRA. In re Permanent" }, { "docid": "17874971", "title": "", "text": "deference in the context of review of an agency refusal to initiate rulemaking. The D.C. Circuit has repeatedly observed that, within the range of deference embodied in the “arbitrary and capricious” standard, refusals to initiate rulemaking are at the high end. See, e.g., Capital Network Sys., Inc. v. FCC, 3 F.3d 1526, 1530 (D.C.Cir.1993) (quoting AHPA 812 F.2d at 4-5; citing Cellnet Communication, Inc. v. FCC, 965 F.2d 1106, 1111 (D.C.Cir.1992)). Courts are ill-equipped and poorly situated to address important reasons for agency inaction, such as the decision that a “problem is not sufficiently important to justify the allocation of significant scarce resources given the nature of the many other problems the agency is attempting to address.” 1 Kenneth C. Davis & Richard J. Pierce, Administrative Law Treatise § 6.9, at 280 (3d ed. 1994). “A court rarely has enough information to second guess agency decisions premised on this type of reasoning.” Id.; see also Natural Resources Defense Council, Inc. v. SEC, 606 F.2d 1031, 1046 (D.C.Cir.1979) (“An agency’s discretionary decision not to regulate a given activity is inevitably based, in large measure, on factors not inherently susceptible to judicial resolution____”); AHPA 812 F.2d at 4-5 (according heightened deference to refusal to initiate rule-making). Nonetheless, we will not blindly uphold agency refusals to initiate rulemaking in the face of new information. “[Cjhanges in factual and legal circumstances may impose upon the agency an obligation to reconsider a settled policy or explain its failure to do so.” Bechtel v. FCC, 957 F.2d 873, 881 (D.C.Cir.1992). For example, “a refusal to initiate a rulemaking naturally sets off a special alert when a petition has sought a radical modification of a rule on the basis of a radical change in its factual premises.” AHPA 812 F.2d at 5. Thus, the D.C. Circuit has held “that an agency may be forced by a reviewing court to institute rulemaking proceedings if a significant factual predicate of a prior decision on the subject (either to promulgate or not to promulgate specific rules) has been removed.” WWHT, 656 F.2d at 819 (describing Getter v. FCC, 610 F.2d" }, { "docid": "17874972", "title": "", "text": "given activity is inevitably based, in large measure, on factors not inherently susceptible to judicial resolution____”); AHPA 812 F.2d at 4-5 (according heightened deference to refusal to initiate rule-making). Nonetheless, we will not blindly uphold agency refusals to initiate rulemaking in the face of new information. “[Cjhanges in factual and legal circumstances may impose upon the agency an obligation to reconsider a settled policy or explain its failure to do so.” Bechtel v. FCC, 957 F.2d 873, 881 (D.C.Cir.1992). For example, “a refusal to initiate a rulemaking naturally sets off a special alert when a petition has sought a radical modification of a rule on the basis of a radical change in its factual premises.” AHPA 812 F.2d at 5. Thus, the D.C. Circuit has held “that an agency may be forced by a reviewing court to institute rulemaking proceedings if a significant factual predicate of a prior decision on the subject (either to promulgate or not to promulgate specific rules) has been removed.” WWHT, 656 F.2d at 819 (describing Getter v. FCC, 610 F.2d 973 (D.C.Cir.1979)). An agency determination may also be vulnerable to challenge if it rests on an insufficient legal predicate. Where the agency’s refusal to initiate rulemaking implicates questions of statutory interpretation, we use the familiar Chevron test. When we review an agency’s interpretation of a statute it administers, we ask two questions. “First, always, is the question 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, U.S.A, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). But “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. at 2782. If Congress has explicitly or implicitly delegated authority to an agency, “legislative regulations are" }, { "docid": "5853815", "title": "", "text": "(D.C.Cir.2004) (citation omitted), cert. denied, EMR Network v. F.C.C., 545 U.S. 1116, 125 S.Ct. 2925, 162 L.Ed.2d 297 (2005) (same). Defendants urge the court to employ the most deferential standard of review. In fact, they believe the court must view OHA’s actions with deference so extreme that it is “akin to non-reviewability.” Memorandum in Support of Defendants’ Cross Motion at 15, quoting Cellnet Communication, Inc. v. FCC, 965 F.2d 1106, 1111 (D.C.Cir.1992). Defendants assert that in order to survive judicial scrutiny under this extremely deferential standard of review, an agency need only provide an “adequate response” to the concerns raised in a rulemaking petition. NMA v. DOI 1995, 70 F.3d at 1353. See also National Coal Ass’n v. JJram, 1994 WL 736422, at *4 (D.D.C. Sept. 16, 1994) (standard of review is “narrow” and rule must be affirmed if there is a “rational basis” for the agency’s decision). Defendants also take the position that deference to an administering agency “is particularly appropriate” when dealing with a “complex regulatory statute” such as SMCRA. In re Permanent Surface Mining Regulation Litigation, 653 F.2d 514, 522-23 (D.C.Cir.1981). To the contrary, NMA claims that OHA’s November 28, 2003 decision is subject to a searching review. NMA explains that under APA § 706, the court is required to “engage in a substantial inquiry” and a conduct a “thorough, probing, in-depth review.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overturned on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). See also James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1098 (D.C.Cir.1996) (“judicial review of agency action under the APA must go beyond the agency’s procedures to include the substantive reasonableness of its decision”). NMA also claims that a specific circumstance in this case lends extra support in favour of a probing review. NMA draws the court’s attention to a 2004 case in which the D.C. Circuit held that one of the “strongest potential bases for overturning an agency’s refusal to initiate a rulemaking [occurs when]" }, { "docid": "8722144", "title": "", "text": "consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. . In Heckler v. Chaney, 470 U.S. 821, 825, 105 S.Ct. 1649, 1652, 84 L.Ed.2d 714 (1985), the Supreme Court held that an agency’s refusal to take ad hoc enforcement action is presumptively unreviewable. However, it has been held that the Heckler presumption does not apply to an agency's refusal to institute rulemaking. American Horse Protection Ass'n v. Lyng, 812 F.2d 1, 4-5 (D.C.Cir.1987). See also Heckler, 470 U.S. at 825 n. 2, 105 S.Ct. at 1652 n. 2 (expressly noting that the Court was not addressing review of an agency's refusal to institute rulemaking). . See, 1 Kenneth C. Davis & Richard J. Pierce, Administrative Law Treatise § 6.9, at 280 (3d ed. 1994): An agency can have any number of plausible reasons for declining to [undertake rulemak-ing], and courts are poorly positioned to evaluate the reasons most frequently given by agencies. These include an agency’s decision that ... the problem is not sufficiently important to justify allocation of significant scarce resources given the nature of the many other problems the agency is attempting to address. A court rarely has enough information to second guess agency decisions premised on this type of reasoning. . The district court ignored the fact that Congress has delegated policy-making in this area to the Secretary. It thought the $1,500 figure to he inadequate for various policy reasons that it elucidated: Used today, [the $1,500 automobile equity exemption] can result in an AFDC recipient los-val his or her job by not allowing the recipient the availability of a safe operative motor vehicle in lieu of a schlock vehicle. The end result would be for the government or other relief agencies making up the difference in lost income. It destroys initiative of those who are endeavoring to get off the public dole and exacerbates the personal degradation of many who are reluctantly on relief only as a last resort. However, the courts are not empowered by Congress to impose their concepts of" }, { "docid": "22853616", "title": "", "text": "14.2. Neither the ESA nor the regulations prescribe a procedure for such petitions. Rather, they are considered under the provisions of the APA. 50 C.F.R. § 424.14(a); 43 C.F.R. § 14.2; 5 U.S.C. § 553(e). The APA requires agencies to allow interested persons to “petition for the issuance, amendment, or repeal of a rule,” 5 U.S.C. § 553(e), and, when such petitions are denied, to give “a brief statement of the grounds for the denial,” 5 U.S.C. § 555(e). Agencies denying rulemaking petitions must explain their actions. American Horse Protection Ass’n, Inc. v. Lyng, 812 F.2d 1, 4 (D.C.Cir.1987). Thus, the right to petition for rulemaking entitles the petitioning party to a response on the merits of the petition. In assessing the actions of the FWS, the Court considers whether they were “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); American Horse Protection Ass’n, Inc. v. Lyng, 812 F.2d at 4-5. Courts ordinarily afford agencies a particularly high degree of deference regarding their decision not to initiate a rulemaking proceeding. Id. Such a refusal will be overturned only in the rarest and most compelling of circumstances. WWHT, Inc. v. FCC, 656 F.2d 807, 817 (D.C.Cir.1981). Nonetheless, the Court must assure itself that the agency “has adequately explained the facts and policy concerns it relied on, and that the facts have some basis in the record.” National Ass’n of Regulatory Utility Comm’rs v. U.S. Dep’t of Energy, 851 F.2d 1424, 1430 (D.C.Cir.1988) (citation omitted); Professional Drivers Council v. Bureau of Motor Carrier Safety, 706 F.2d 1216, 1220-21 (D.C.Cir.1983). Plaintiffs contend that the FWS reversed its course because it withdrew its 1976 proposal to designate critical habitat after the ESA was amended in 1978 and new obligations were imposed on the FWS before the designation of critical habitat. Where an agency has reversed its course, it must supply a reasoned analysis justifying the reversal. Motor Vehicle Manufacturers Ass’n, Inc. v. State Farm Mutual Auto. Insurance Co., 463 U.S. 29, 57, 103 S.Ct. 2856, 2874, 77 L.Ed.2d 443 (1983). In January 1991, as part" }, { "docid": "17874970", "title": "", "text": "determine if the agency’s refusal was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Oklahoma v. EPA, 908 F.2d 595, 598 (10th Cir.1990), rev’d on other grounds sub nom. Arkansas v. Oklahoma, 503 U.S. 91, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992). Although our inquiry into the basis of the agency’s action will be searching and careful, our review is ultimately a narrow one. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971). Review under the “arbitrary and capricious” standard “encompasses a range of levels of deference to the agency.” American Horse Protection Ass’n v. Lyng, 812 F.2d 1, 4 (D.C.Cir.1987) (AHPA) (citing WWHT, Inc. v. FCC, 656 F.2d 807, 817 (D.C.Cir.1981)); accord Brown v. Secretary of Health and Human Servs., 46 F.3d 102, 110 (1st Cir.1995). In determining the appropriate level of deference, we heed the nature and context of the challenged agency action or inaction. Substantial prudential concerns counsel particularly broad deference in the context of review of an agency refusal to initiate rulemaking. The D.C. Circuit has repeatedly observed that, within the range of deference embodied in the “arbitrary and capricious” standard, refusals to initiate rulemaking are at the high end. See, e.g., Capital Network Sys., Inc. v. FCC, 3 F.3d 1526, 1530 (D.C.Cir.1993) (quoting AHPA 812 F.2d at 4-5; citing Cellnet Communication, Inc. v. FCC, 965 F.2d 1106, 1111 (D.C.Cir.1992)). Courts are ill-equipped and poorly situated to address important reasons for agency inaction, such as the decision that a “problem is not sufficiently important to justify the allocation of significant scarce resources given the nature of the many other problems the agency is attempting to address.” 1 Kenneth C. Davis & Richard J. Pierce, Administrative Law Treatise § 6.9, at 280 (3d ed. 1994). “A court rarely has enough information to second guess agency decisions premised on this type of reasoning.” Id.; see also Natural Resources Defense Council, Inc. v. SEC, 606 F.2d 1031, 1046 (D.C.Cir.1979) (“An agency’s discretionary decision not to regulate a" } ]

[ { "docid": "16287356", "title": "", "text": "appeal and, unsurprisingly, on the merits question of whether the disputed expenses can or should be deducted as part of the FLSA calculation. A panel of this court opted to utilize its discretion to exercise jurisdiction in this case and ultimately found that Decatur was correct on the merits. After granting en banc rehearing and following reargument of the case, we now issue this opinion, again finding jurisdiction and reversing the district court on the merits. II. Standard of Review The court reviews its own jurisdiction de novo. Nehme v. INS, 252 F.3d 415, 420 (5th Cir.2001). The court reviews certified orders de novo. Tanks v. Lockheed Martin Corp., 417 F.3d 456, 461 (5th Cir.2005). Under 28 U.S.C. § 1292(b), a grant or denial of summary judgment is reviewed de novo, applying the same standard as the district court, First Am. Bank v. First Am. Transp. Title Ins. Co., 585 F.3d 833, 836-37 (5th Cir.2009), but review only extends to controlling questions of law, Tanks, 417 F.3d at 461. Further, the court’s inquiry “is limited to the summary judgment record before the trial court.” Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 871 (5th Cir.2009). The court must view the evidence in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and the movant has the burden of showing this court that summary judgment is appropriate, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate where the competent summary judgment evidence demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Bolton v. City of Dallas, 472 F.3d 261, 263 (5th Cir.2006); see Fed. R. Civ. P. 56(c). A genuine issue of material fact exists if a reasonable jury could enter a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). III. Discussion A. Jurisdiction The" } ]

[ { "docid": "14711727", "title": "", "text": "order after additional briefing. In an order dated August 3, 2009, the district court granted summary judgment as to Harlingen on all remaining claims. Saenz timely filed her notice of appeal on August 27, 2009. II. STANDARD OF REVIEW A grant of summary judgment is reviewed de novo, applying the same standard as the district court. Bolton v. City of Dallas, 472 F.3d 261, 263 (5th Cir.2006). The inquiry “is limited to the summary judgment record before the trial court.” Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 871 (5th Cir.2009). The Court must view the evidence in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and the movant has the burden of showing this court that sum mary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate where the competent summary judgment evidence demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Bolton, 472 F.3d at 263; see Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if a reasonable jury could enter a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). III. DISCUSSION The instant case presents two interrelated issues. First, we must consider whether the district court erred when it relied upon our decision in Greenwell v. State Farm Mut. Auto. Ins. Co., 486 F.3d 840 (5th Cir.2007), to conclude that Saenz was required to comply with Harlingen’s internally-created heightened FMLA notice requirements. Second, dependent upon the outcome of that inquiry, we must decide whether Saenz provided adequate notice in keeping with Harligen’s procedures or the more relaxed default FMLA standard. We address each issue in turn. A. Whether the district court erred in its conclusion that Saenz was required to comply with Harlingen’s in-house FMLA procedures Citing Saenz’s nine prior uses of FMLA leave, the district" }, { "docid": "7271917", "title": "", "text": "in the events in question (defendants Sabol and Little) or were entitled to qualified immunity (defendants Delamothe and McIntyre). See id. at 294-95. The plaintiffs do not appeal the dismissal of the claims against Sabol and Little, but they do challenge the district court’s determination of qualified immunity for Delamothe and McIntyre. The district court held that Morance, the only individual Hospital defendant, had waived the defense of qualified immunity by failing to plead it in her answer. See id. at 294 n. 5. Because the district court had disposed of all federal claims, it exercised its discretion under 28 U.S.C. § 1367(c)(3) to dismiss the plaintiffs’ state law claims. See id. at 296. This appeal followed. We now affirm the judgment of the district court but on the basis of a somewhat different analysis. DISCUSSION I. Standard of Review We review the district court’s grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party. See Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.1999), cert. denied, 529 U.S. 1098 (2000). Summary judgment is appropriate where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law,” Fed.R.Civ.P. 56(c), i.e., “[wjhere the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). An issue of fact is “material” for these purposes if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. We may affirm the award of summary judgment on any ground with adequate support in the record. See Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573, 584 (2d Cir.2000); Shumway v. United Parcel Serv., Inc.," }, { "docid": "11429718", "title": "", "text": "Amendment claim, the court held that the named defendants did not act deliberately indifferent in supervising and treating the decedent, and were therefore entitled to qualified immunity. Moreover, the court held that NRPH and the Michigan Department of Mental Health could not be held liable under the doctrine of respondeat superior. Accordingly, the district court granted defendants’ motion. The court did not address the Fourteenth Amendment due process claim. Terrance now appeals the district court’s order. II. DISCUSSION A. Summary Judgment This court reviews an order granting summary judgment de novo. Terry Barr Sales Agency, Inc. v. All-Lock Co., 96 F.3d 174, 178 (6th Cir.1996). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.CivJP. 66(c); Terry Barr, 96 F.3d at 178. No genuine issue for trial exists when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Moreover, this court must review the record, and any inferences derived therefrom, in the light most favorable to the non-moving party. Id. Accordingly, “when the non-moving party presents direct evidence refuting the moving party’s motion for summary judgment, the court must accept the evidence as true.” Adams v. Metiva, 31 F.3d 375, 382 (6th Cir.1994). B. Plaintiff s claims on appeal Terrance appeals the district court’s order awarding summary judgment in favor of defendants in this 42 U.S.C. § 1983 action. He asserts that defendants violated the decedent’s Eighth Amendment right to medical care because defendants acted with deliberate indifference in their treatment and care of the decedent that led directly to his death. Specifically, Terrance argues that defendants’ conduct reflected substantial departure from accepted professional treatment and did not respond to the decedent’s medical emergency in a timely fashion. Additionally, he asserts" }, { "docid": "1402542", "title": "", "text": "court’s judgment was affirmed in all other respects. Brown v. Crowley, 229 F.3d 1150, 2000 WL 1175615 (6th Cir.2000) (unpublished table decision). After the case was remanded, the two remaining defendants, Warden Crowley and Case Manager Lesatz, filed an answer to Brown’s complaint. In their answer, the defendants raised the affirmative defense of “immunity.” Brown subsequently filed a motion to amend his complaint to add five defendants. On January 17, 2001, the defendants filed a motion for dismissal or for summary judgment. In their motion, however, the defendants did not argue for dismissal or summary judgment on the ground of qualified immunity. ■ The magistrate judge recommended that the defendants’ motion for summary judgment be granted on the- basis that Brown had failed to establish all of the required elements of a retaliation claim. Over Brown’s objections, the district court adopted the magistrate judge’s Report and Recommendation. Brown’s motion to amend his complaint was then denied as moot. Neither the magistrate judge nor the district court addressed the issue of qualified immunity in granting the defendants’ motion for summary judgment. This timely appeal followed. II. ANALYSIS A. Retaliation claim On appeal, Brown argues that the district court erred in granting summary judgment to the defendants on his retaliation claim. A district court’s grant of summary judgment is reviewed de novo. Holloway v. Brush, 220 F.3d 767, 772 (6th Cir.2000). Summary judgment is proper where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering such a motion, the court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). This court has held" }, { "docid": "4162145", "title": "", "text": "the phone. On Derek’s behalf, his parents sued the District and Roye; Mrs. Harris also sued individually. These were the claims: Derek’s right to due process was violated; Derek was defamed; Mrs. Harris was wrongfully terminated in retaliation for protected First Amendment speech; Roye tortiously interfered with her employment contract. The district court granted summary judgment to the District on all claims. A timely appeal followed. DISCUSSION A grant of summary judgment is reviewed de novo. Bolton v. City of Dallas, 472 F.3d 261, 263 (5th Cir.2006). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The movant has the burden of showing that summary judgment is appropriate, and we view the evidence in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Once the moving party has carried its burden, the non-movant must come forward with specific facts showing a genuine factual issue for trial. Id. at 587, 106 S.Ct. 1348. I. Derek’s Due Process Claim A State’s extending the right to an education creates a property interest protected by the Due Process Clause of the Fourteenth Amendment; a State “may not withdraw that right on grounds of misconduct absent[ ] fundamentally fair procedures to determine whether the misconduct has occurred.” Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (citation omitted). A student’s transfer to an alternative education program does not deny access to public education and therefore does not violate a Fourteenth Amendment interest. See Nevares v. San Marcos Consol. Indep. Sch. Dist., 111 F.3d 25, 26-27 (5th Cir.1997). Thus, we analyze only Derek’s temporary suspension. Because Derek was subject to a temporary suspension of no more than 10 days, he had to “be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of" }, { "docid": "11379393", "title": "", "text": "for summary judgment. Four months later, a magistrate judge issued a Memorandum and Recommendation suggesting that the motion for summary judgment be granted and that Price’s action be dismissed. The magistrate judge concluded that Price had suffered serious injuries, but that the evidence he presented did not create a genuine issue of material fact regarding a substantial risk of harm in the Wayne County jail to which the defendants had been deliberately indifferent. The magistrate judge also determined that, in any event, the defendants were entitled to qualified immunity. On July 26,1994, the district court adopted the magistrate judge’s recommendation and findings, thereby granting defendants’ motion for summary judgment and dismissing Price’s action. Price appeals only the court’s dismissal of his failure to protect claim against defendant Tadlock. See Brief of Appellant at 4 n. 1. Jurisdiction is proper under 28 U.S.C. §§ 1343(a)(3) and 1291. II. We review the district court’s grant of summary judgment de novo. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.), cert. denied, — U.S. -, 115 S.Ct. 67, 130 L.Ed.2d 24 (1994); Ramos v. Southern Md. Elec. Cooperative, Inc., 996 F.2d 52, 53 (4th Cir.1993). Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Miller v. Federal Deposit Ins. Corp., 906 F.2d 972, 974 (4th Cir. 1990). In making this determination, we view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all reasonable inferences. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir.1990). “If, however, ‘the evidence is so one-sided that one party must prevail as a matter of law,’ we must affirm the grant of summary judgment in that party’s favor.” O’Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542, 545 (4th Cir.1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d" }, { "docid": "8600546", "title": "", "text": "genuine issues of material fact regarding whether the transfer was in retaliation for filing grievances and threatening legal action, and whether the transfer was punitive in violation of the right to due process. Each of the defendants now appeals the district court’s denial of summary judgment based on qualified immunity. II This court reviews a district court’s grant of summary judgment de novo. Fischer v. Andersen Corp., 483 F.3d 553, 556 (8th Cir.2007) (citing Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 841 (8th Cir.2002)). 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, summary judgment is appropriate. Id. (citing Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Ordinarily, orders denying summary judgment are not final and appeal-able and we lack jurisdiction to consider an appeal from the denial. Miller v. Schoenen, 75 F.3d 1305, 1308 (8th Cir.1996). We do, however, have limited jurisdiction to consider an interlocutory appeal from the denial of summary judgment based on qualified immunity. Id. “Our review is limited to determining whether the official is entitled to qualified immunity based on the summary judgment facts as described by the district court.” Beck v. Wilson, 377 F.3d 884, 889 (8th Cir.2004) (citing Hawkins v. Holloway, 316 F.3d 777, 781 (8th Cir.2003)). Government officials are generally afforded qualified immunity under section 1983 when performing discretionary functions unless their conduct violates clearly established law. Id. (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Under the two-stage inquiry employed by this court, we first determine whether the facts, viewed in the light most favorable to the plaintiff, establish a violation of a constitutional right. Id. The second question is whether the relevant constitutional right was clearly established at the time of the alleged violation. Id. A. Failure to Protect The defendants first assert they are entitled to qualified immunity on Nelson’s claim" }, { "docid": "3527597", "title": "", "text": "The district court concluded that Deputy Hill was entitled to both absolute quasi-judicial immunity and qualified immunity from suit. The court also concluded that Sheriff McPeak was not hable in his official capacity as the representative of McCurtain County. Finally, the court concluded that Sheriff McPeak was entitled to qualified immunity from suit in his individual capacity. Accordingly, the district court granted summary judgment to Hill and McPeak by Order filed May 4, 1995. This appeal followed. DISCUSSION Ms. Hollingsworth contends that the district court erred in two respects. First, she contends that Deputy Hill is not entitled to qualified immunity from liability under 42 U.S.C. § 1983. Second, she asserts that Sheriff McPeak is hable in his official capacity for the constitutional injury caused by the acts of Deputy Hill. We review the district court’s entry of summary judgment de novo, applying the same standard used by the district court under Fed.R.Civ.P. 56(c). V-1 Oil Co. v. Means, 94 F.3d 1420, 1422 (10th Cir.1996). Summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(e). “We view the evidence and draw any inferences therefrom in the hght most favorable to the party opposing summary judgment.” Coosewoon v. Meridian Oil Co., 25 F.3d 920, 929 (10th Cir.1994). “ Where the record taken as a whole could not lead a rational trier of fact to find for the nonmov-ing party,’ summary judgment in favor of the moving party is proper.” Thomas v. International Business Machines, 48 F.3d 478, 484 (10th Cir.1995) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). A. Qualified Immunity ‘We analyze assertions of qualified immunity under a two-part framework: first we determine whether the plaintiff has asserted a violation of a constitutional or statutory right, and then we decide whether that right was clearly established" }, { "docid": "22289917", "title": "", "text": "a genuine issue of material fact exists as to whether these actions chilled his First Amendment 1‘ights. Finally, he argues that the City employees are not entitled to qualified immunity to the extent that we conclude that he has raised a viable constitutional claim. Discussion We review the district court’s grant of summary judgment for the City de novo, applying the same legal standard as the district court. Darr v. Town of Telluride, Colo., 495 F.3d 1243, 1250 (10th Cir.2007). Under Fed.R.Civ.P. 56(c), 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 a judgment as a matter of law.” 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. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “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.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation omitted). The question then is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “[Ojn summary judgment, the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion.” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. This court uses the same standard in evaluating dismissals in qualified immunity cases as to dismissals generally. Moya v. Schollenbarger, 465 F.3d 444, 455 (10th Cir.2006). Our review is de" }, { "docid": "16379913", "title": "", "text": "notices of appeal. III. STANDARDS OF REVIEW A district court must grant a motion for summary judgment if it finds that the “pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). The moving party bears the initial burden of specifying the basis for its motion and of identifying that portion of the record which demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party must then produce specific evidence that demonstrates there is a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252, 106 S.Ct. 2505. The court must view the evidence in the fight most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On appeal, this court reviews an order granting summary judgment de novo. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.1999). The appellate court uses the same legal standard as used by the district court to determine whether summary judgment is appropriate. Id. The district court’s denial of Defendants’ request for attorney’s fees is reviewed for abuse of discretion. Muzquiz v. W.A. Foote Memorial Hosp., Inc., 70 F.3d 422, 432 (6th Cir.1995). IV. DISCUSSION A. The district court’s grant of summary judgment in favor of Defendants on the basis of HCQIA immunity was proper. The HCQIA was passed in 1986 to provide for effective peer review and interstate monitoring of incompetent physicians, and to grant qualified immunity from damages for those who participate in peer review activities. Austin v. McNamara," }, { "docid": "15023611", "title": "", "text": "individual defendants were entitled to qualified immunity. The court granted Defendants’ motion for partial summary judgment in part and denied it in part, concluding that Stonecipher and Burrell, who were added after Defendant’s initial summary judgment motion, were entitled to qualified immunity in their individual capacities and, as it had previously concluded, the other Defendants were not entitled to qualified immunity. From August 11, 2008 through August 15, 2008, a jury trial was held that ended in a mistrial because the jury was unable to reach an unanimous verdict. The district court subsequently requested that the parties file post-trial briefs in light of this Court’s decision in Barr v. Lafon, 538 F.3d 554 (6th Cir.2008). On August 11, 2009, the district court granted summary judgment in favor of Defendants and dismissed the action. Plaintiffs now appeal. II. DISCUSSION A. Standard of Review The Court reviews de novo a motion for summary judgment. Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir.2007). Summary judgment is appropriate where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). Where the record, viewed as a whole, “could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In considering a summary judgment motion, all inferences to be drawn from the facts must be viewed in the light most favorable to the non-moving party. Id. A judge’s role is not to weigh the evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once a summary judgment motion is properly made and supported, “an opposing party may not rely merely on allegations or denials in its own pleading; rather its response" }, { "docid": "23069309", "title": "", "text": "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. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and the movant has the burden of showing this Court that summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate where the competent summary judgment evidence demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Bolton, 472 F.3d at 263; see Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if a reasonable jury could enter a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 2. Analysis “Qualified immunity protects public officials from suit unless them conduct violates a clearly established constitutional right.” Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir.2003). Although nominally an affirmative defense, the plaintiff has the burden to negate the defense once properly raised. The defendant official must initially plead his good faith and" }, { "docid": "11839745", "title": "", "text": "that the staff ignored Lan-man until one of the nurses noticed he was passed out. Hunter gave a similar account to the Kalamazoo police department when they interviewed him shortly after they arrived on the scene. The personal representative of Lan-man’s estate, Patricia Lanman, filed suit against defendants Hinson, Siegfried, Mor-ey, Price, White, Stiver, Koldenhof, Pran-dine, and Bronsink, alleging violations of 42 U.S.C. § 1983; statutory abuse or neglect under Michigan law; and assault and battery. Defendants moved for summary judgment asserting qualified immunity with regard to Lanman’s § 1983 claim. The district court denied the defendant’s motion, and this interlocutory appeal followed. II. This court reviews an order denying summary judgment on qualified immunity grounds de novo. See v. City of Elyria, 502 F.3d 484, 490 (6th Cir.2007). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.CivP. 56(c). When deciding a motion for summary judgment, this court views the evidence and draws all reasonable inferences in favor of the non-moving party. Hardesty v. Hamburg Twp., 461 F.3d 646, 650 (6th Cir.2006) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Any direct evidence offered by the plaintiff in response to a summary judgment motion must be accepted as true. Id. Nevertheless, the “mere existence of 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A. Jurisdiction This Court’s review of interlocutory appeals challenging a district court’s denial of qualified immunity “is confined to the question of whether all of the conduct which the district court deemed sufficiently supported for purposes of summary judgment met the Harlow standard of objective legal" }, { "docid": "23224930", "title": "", "text": "the instant appeal on the question of indemnity under matter No. 08-31248. Shortly thereafter, Wellons and Martco filed a joint motion for summary judgment on the issue of Admiral’s duty to defend. Admiral responded by claiming that there was no duty to defend under the policy because there was no “property damage” caused by an “occurrence” evident in the original Martco complaint and because numerous exclusions applied. The district court found that there was “property damage.” Without examining whether there was an occurrence, the court turned to Exclusion (m) to determine whether the “property damage” alleged was excluded. It concluded that this exclusion applied such that Admiral did not have a duty to defend Wellons in the underlying suit. The duty to defend issue was timely appealed as matter No. 08-31247. II. STANDARD OF REVIEW We apply Louisiana substantive law when reviewing a district court’s ruling in a diversity action. Foradori v. Harris, 523 F.3d 477, 486 (5th Cir.2008) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-79, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). 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, 1131-32 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. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and the movant has the burden of showing this court that summary judgment is appropriate, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate where the competent summary judgment evidence demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Bolton, 472 F.3d at 263; see Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if a reasonable jury could enter a verdict for the non-moving" }, { "docid": "23461142", "title": "", "text": "motion after the conclusion of discovery. Neither of the two orders is premised on the district court’s finding that there were genuine issues of material fact remaining for trial. Indeed, the existence of genuine issues of fact material to the plaintiffs claims is not mentioned in these orders at all. Because the denial did not turn on the existence of a genuine issue of material fact, we have jurisdiction to entertain this appeal. B. Standard of Review We review de novo a district court’s denial of a motion for summary judgment premised on qualified immunity. Mattox, 183 F.3d at 519. Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). We must view the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To withstand summary judgment, the non-movant must show sufficient evidence to create a genuine issue of material fact. Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir.1990). A mere scintilla of evidence is insufficient; “there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Entry of summary judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). C. The District Court’s Treatment of the Motion for Summary Judgment on Qualified Immunity Grounds. The entitlement to qualified immunity involves immunity from suit rather than a mere defense to liability. Siegert v." }, { "docid": "14711726", "title": "", "text": "the same way it had addressed her seizure-related request six months earlier. Saenz also received a letter from Harlingen dated January 18, 2007. In it, Harlingen informed Saenz she was “being involuntarily terminated from Harlingen Medical Center effective immediately” due to her non-FMLA approved absences. The letter explained that Saenz had been required to contact The Hartford on January 2, 2007 — two days following her release. After her termination, Saenz made no effort to furnish the medical certification documentation requested by The Hartford in its January 18 letter. Saenz sued Harlingen and Medcath Incorporated (“Medcath”) in state court; the defendants removed the case to federal court and then moved for summary judgment. In an order dated July 31, 2009, the district court granted the motion for summary judgment as to Medcath on the grounds that Saenz failed to establish a genuine issue of material fact as to whether Medcath was a covered employer under the FMLA. The July 31 order expressly held over all questions relating to Harlingen to be addressed in a subsequent order after additional briefing. In an order dated August 3, 2009, the district court granted summary judgment as to Harlingen on all remaining claims. Saenz timely filed her notice of appeal on August 27, 2009. II. STANDARD OF REVIEW A grant of summary judgment is reviewed de novo, applying the same standard as the district court. Bolton v. City of Dallas, 472 F.3d 261, 263 (5th Cir.2006). The inquiry “is limited to the summary judgment record before the trial court.” Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 871 (5th Cir.2009). The Court must view the evidence in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and the movant has the burden of showing this court that sum mary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate where the competent summary judgment evidence demonstrates that there is no genuine issue of" }, { "docid": "12599466", "title": "", "text": "use of excessive force. Count 2 alleged the City was liable for adopting policies and practices which resulted in Officer Bateman’s use of excessive force. Count 3 asserted a claim for loss of consortium on behalf of Becker’s wife. The district court granted summary judgment in favor of all defendants, concluding Becker failed to establish the violation of a constitutional right. III. Discussion A. Standard of Review This court reviews a grant of summary judgment on qualified immunity grounds de novo, applying the same standard as the district court. J.W. ex rel. A.W. v. Utah, 647 F.3d 1006, 1009 (10th Cir.2011). 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.” Fed.R.Civ.P. 56(a). “An issue is ‘genuine’ if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998). “An issue of fact is ‘material’ if under the substantive law it is essential to the proper disposition of the claim.” Id. Put differently, “[t]he question ... is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir.2007) (quotation omitted). “On summary judgment the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quotation omitted). This court reviews summary judgments based on qualified immunity differently than other summary judgments. “When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the constitutional right was clearly established.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.2009). The court maintains discretion to determine “which" }, { "docid": "23316132", "title": "", "text": "judgment was entered on June 29, 2005. Discussion On appeal, Higazy argues that (I) the district court erred in granting summary judgment on his Fifth Amendment self-incrimination claim because (a) Templeton was not entitled to qualified immunity, and (b) Templeton’s conduct was a proximate cause of the use of Higazy’s allegedly coerced statements and Higazy’s resulting detention; and (II) the district court erred in granting summary judgment on his Sixth Amendment claim because (a) Higa-zy’s Sixth Amendment claim can be pleaded in the alternative to his Fifth Amendment claim, and (b) Templeton was not entitled to qualified immunity. This Court reviews de novo the granting of summary judgment by a district court. Pepsico, Inc. v. Coca-Cola Co., 315 F.3d 101, 104 (2d Cir.2002). Summary judgment is appropriate only where, “[ejxamin-ing the evidence in the light most favorable to the nonmoving party,” Adjustrite Sys., Inc. v. GAB Bus. Servs., Inc., 145 F.3d 543, 547 (2d Cir.1998), the record shows “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). A motion for summary judgment must be rejected “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party against whom summary judgment is sought “must do more than simply show that there is some metaphysical doubt as to the material facts.... The nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation marks omitted). A Bivens action is a judicially-created remedy designed to provide individuals with a cause of action against federal officials who have violated their constitutional rights. Ellis v. Blum, 643 F.2d 68, 84 (2d Cir.1981). “Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in" }, { "docid": "23224931", "title": "", "text": "(1938)). 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, 1131-32 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. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and the movant has the burden of showing this court that summary judgment is appropriate, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate where the competent summary judgment evidence demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Bolton, 472 F.3d at 263; see Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if a reasonable jury could enter a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). III. DISCUSSION An insurer’s duty to defend suits on behalf on an insured presents a separate and distinct inquiry from that of the insurer’s duty to indemnify a covered claim after judgment against the insured in the underlying liability case. Elliott v. Cont’l Cas. Co., 949 So.2d 1247, 1250 (La.2007) (citing Am. Home Assurance Co. v. Czarniecki, 255 La. 251, 230 So.2d 253, 259 (1969)). While factual inquiries beyond the complaint are prohibited with respect to the duty to defend, they are indispensable in assessing the duty to indemnify. Assessing each duty requires analysis of different facts in the light of applicable controlling presumptions. Accordingly, we will address each duty separately. A. The Duty to Defend Wellons’s appeal from the district court’s grant of summary judgment on the duty to defend raises two issues for review: (1) whether Martco’s complaint alleged a potentially covered event triggering Admiral’s duty to defend under the Policy, and (2) whether that alleged" }, { "docid": "13128160", "title": "", "text": "merely an ancillary requirement, not material to HUD’s determination that the borrowers were financially qualified or had a sufficient personal financial stake in the property to be unlikely to default. As the Fifth Circuit later noted in United States v. Miller, 645 F.2d 473 (5th Cir.1981), “false statements regarding the ability of purchasers to afford housing could very well be the major factor [causing] subsequent defaults,” and thus Hibbs does not preclude a fraud claim against a developer who misrepresented buyers’ down payments. Similarly, we conclude that Hibbs does not preclude the determination by the district court that the seller’s (or broker’s) misrepresentation of the buyers’ down payments was a proximate cause of the guarantor’s loss when the buyers subsequently defaulted on their mortgages. Because this case was decided below on a motion for summary judgment, we must review the decision to grant summary judgment de novo. In re Varrasso, 37 F.3d 760, 763 (1st Cir.1994) (district court reviews bankruptcy court’s grant of summary judgment de novo, and court of appeals applies same standard in reviewing district court’s affirmance); Rosen v. Bezner, 996 F.2d 1527, 1530 & n. 2 (3d Cir.1993) (same). Summary judgment in bankruptcy is governed by Bankruptcy Rule 7056, which incorporates the standard of Rule 56 of the Federal Rules of Civil Procedure: summary judgment may be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Varrasso, 37 F.3d at 762-63. On a motion for summary judgment, “all inferences to be drawn ... must be viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In this case, the underlying facts are undisputed. From those facts, the district court" } ]

[ { "docid": "1264101", "title": "", "text": "reversed as to the specification of the second charge. However, its decision as to the specification of Charge I is affirmed. In view of our holding on the second assignment of error, it is unnecessary that we consider the first. The case is remanded to The Judge Advocate General, United States Army, for reference to the board of review for determination of adequacy of sentence, or for other action not inconsistent with this opinion. See Uniform Code of Military Justice, Articles 67(e) and (f), supra; United States v. Keith, supra. Chief Judge Quinn concurs. LatimeR, Judge (dissenting in part and concurring in part) : I dissent from that part of the Court’s opinion which holds there was material prejudice because the law officer failed to give more adequate instructions. I concur in the remaining portions. The Court’s opinion does not fully develop the manner in which the elements of the offense of voluntary manslaughter were ealled to the attention of the court-martial. However, this is of little importance in view of the rule announced in United States v. Gilbertson (No. 318), 1 USCMA 465, 4 CMR 57, decided July 22, 1952. The principles herein discussed are similar to those advanced in that case and my reasons for dissenting are substantially set forth therein. No good purpose would be served by repeating them." } ]

[ { "docid": "23642759", "title": "", "text": "“general prejudice” I intend to refer only to (3) — and I do not concern myself with specific prejudice; and when I say “military due process” I have reference only to (4) — and here, too, I do not search for specific prejudice. Does this not help just a little? In fine, it is submitted that, in the doctrine of general prejudice, we have a tool which is at once sharper-edged and more selective than the principle of bare prejudice, as well as more descriptive, more realistic and, I believe, genuinely more cognitive of what is actually being done. IV What are frequently called “harmless error” statutes, such as Article 59(a) of the Uniform Code, supra, are in no way novel. See Rule 52(a), Federal Rules Criminal Procedure, 28 USC § 2111. Nor have they operated to abrogate any of the thinking or practices reported earlier herein. I am certainly aware of the admitted evils they were intended to obviate, and I am also familiar with their history. Moreover, no one is more sympathetic than I with their wholly commendable objectives. See United States v. Lee (No. 200), 2 CMR 118, decided March 13, 1952; United States v. Bound (No. 201), 2 CMR 130, decided March 13, 1952. However, Article 59(a) does not at all require — in either theory or practice— that we go where Judge Latimer would choose to take us. Here, it seems to me, he .is in the position of one who has boarded quite the right train, but has overridden his destination. He has seized upon a perfectly sound idea, but has not known when to loosen his grasp. We are all aware that in case after case convictions are reversed as to serious criminal offenses by appellate courts without testing for prejudice, and without so much as a side-long glance at existing “harmless error” statutes. In all of these instances of course — and properly so — important rights were involved. In many cases, however, courts have been and are concerned with rights of substantially less significance — such as rulings on evidence, instructions," }, { "docid": "23642774", "title": "", "text": "the action of the majority in applying the doctrine of general prejudice to the “closed conference” on what might be termed a temporary basis. This, it is said, is patent anomaly. Although not at all without legal precedent, let us concede arguendo that it is unusual— that is, on its face. However, he may be sure that the device was not adopted blindly. The concept of a bipartite court-martial is utterly new to the sphere of military justice — as are many other significant requirements, which may be comprehended within some such phrase as “the reign of law.” It was simply determined by a majority of this Court that the surest and shortest route to establishing this particular legal idea securely within the framework of the military scheme lay in drawing violations up short through utilization of the principle of general prejudice. Policy was, of course, the foundation for the course adopted. Accepted as a matter of policy, any conceivable surface anomaly gives way to basic soundness. Finally, Judge Latimer is concerned over what he regards as an excess of “administration” in the majority’s action in this and related cases — and in support of his position he quotes from the opinion of Chief Justice Marshall in Osborn v. Bank of United States, 9 Wheat 738, 22 US 738, 6 L ed 204. He could scarcely have chosen a less happy authority from his point of view, or a more useful one from my own. Literally, I know of no American judge who practiced less of what he preached in the Osborn case than did Chief Justice Marshall. He certainly “administered” with a vengeance, as all who are familiar with his opinions will attest —and for a most excellent and compelling reason. He functioned in the Federal civilian judicial scene during a period of juristic immaturity almost identical with that now prevailing in the area of military justice. A substantial element of what Judge Latimer fears as “administration” is always present in the job of -judging — as better judges than I have testified. How little or how much of" }, { "docid": "23642776", "title": "", "text": "this element is defensible — or required — depends in large part, but not wholly, on the maturity of the legal system concerned at the time in question. It must be confessed, indeed, that the majority of this Court in the case at bar has been willing to engage more than he in the practice reprehended by Judge Latimer. This does not necessarily mean, however, . that we have misconceived our office; it may, in fact, mean that he is doing what is perhaps the right thing at the wrong time., In this sense, therefore, it may be said that he is ahead of his era. I warmly concur in the opinion of the Chief Judge. LatimeR, Judge (dissenting): Because this opinion is controlled by the principles announced in United States v. Wilmer Keith (No. 503), 4 CMR 85, decided July 30, 1952, and United States v. McConnell (No. 596), 4 CMR 100, decided July 31, 1952, and other allied cases, and because I did not participate in those cases, I consider it appropriate to express my views on the concepts announced therein. In doing so, I shall first voice my reasons for being critical of the rule announced by the Court and then- proceed to set out generally the principles which I believe necessary for a proper solution of the issues involved. I have watched the doctrine of “general prejudice” develop and it has followed a pattern of first being a hint, then being the subject matter of dicta and finally becoming the rationale of a series of decisions — decisions which I believe are calculated, however unwittingly, to confuse and muddle the administration of military justice. Not only are those decisions fraught with the likelihood of undesirable consequences, they ignore the plain wording of the Uniform Code of Military Justice, 50 USC §§ 551-736, and the experience gained by the Federal civilian courts over their full period of existence. The foregoing observations are not intended to convey the impression that military justice will come to an end because of the concepts announced in the particular line of cases," }, { "docid": "23642775", "title": "", "text": "regards as an excess of “administration” in the majority’s action in this and related cases — and in support of his position he quotes from the opinion of Chief Justice Marshall in Osborn v. Bank of United States, 9 Wheat 738, 22 US 738, 6 L ed 204. He could scarcely have chosen a less happy authority from his point of view, or a more useful one from my own. Literally, I know of no American judge who practiced less of what he preached in the Osborn case than did Chief Justice Marshall. He certainly “administered” with a vengeance, as all who are familiar with his opinions will attest —and for a most excellent and compelling reason. He functioned in the Federal civilian judicial scene during a period of juristic immaturity almost identical with that now prevailing in the area of military justice. A substantial element of what Judge Latimer fears as “administration” is always present in the job of -judging — as better judges than I have testified. How little or how much of this element is defensible — or required — depends in large part, but not wholly, on the maturity of the legal system concerned at the time in question. It must be confessed, indeed, that the majority of this Court in the case at bar has been willing to engage more than he in the practice reprehended by Judge Latimer. This does not necessarily mean, however, . that we have misconceived our office; it may, in fact, mean that he is doing what is perhaps the right thing at the wrong time., In this sense, therefore, it may be said that he is ahead of his era. I warmly concur in the opinion of the Chief Judge. LatimeR, Judge (dissenting): Because this opinion is controlled by the principles announced in United States v. Wilmer Keith (No. 503), 4 CMR 85, decided July 30, 1952, and United States v. McConnell (No. 596), 4 CMR 100, decided July 31, 1952, and other allied cases, and because I did not participate in those cases, I consider it appropriate to" }, { "docid": "5341287", "title": "", "text": "prior to arraignment, and while the issue of the Staff Judge Advocate’s lecture was still fresh in the court members’ minds. Further, the instructions relied on came to no more than the conventional ones dealing with the presumption of innocence, reasonable doubt, and the like— and no slightest effort was made to link their content to the peculiarities of the present situation. LatimeR, Judge (dissenting): I dissent. I am unable to accept the conclusion of the majority that this case should be reversed. The precise le- gal reasons for the reversal are not spelled out but I sense an attempted admixture of sanctions and specific prejudice. For my purposes, it is unnecessary to unscramble them as; whether they are considered separate or together, they do not establish good reason to grant a rehearing. As I view this record there is only one legal question involved and that is, was. the accused denied a trial by a fair and impartial court-martial? I conclude he was not,- and in arriving at my conclusion I am willing to rely on the sworn testimony of each officer on voir dire that the orientation lecture would not influence him, in any manner, in iéaching a fair and just finding and sentence based solely on the evidence adduced and the instructions given by the law officer at the trial. Where, as in those cases cited by my associates, an attempt has been made to bribe a juror and the matter is paraded before the entire panel, whether the impact on any given juror can be self-assessed need not now be determined. But, unless a statement of a juror under oath that he has no fixed opinion on the guilt or innocence of an accused, and that he will decide the case on the evidence and the instructions of the judge, is accepted as worthy of belief, then all trial courts might just as well cast out voir dire of jurors. Those were my views in United States v. Isbell, 3 USCMA 782, 14 CMR 200, and they remain unchanged. It may be, as my associates seem" }, { "docid": "23642757", "title": "", "text": "v. Rhoden (No. 153), 2 CMR 99, decided February 26, 1952. If this is the surrogate proposed as a remedy for the vagueness asserted to be inherent in “general” prejudice, I am afraid the critic stands on insecure gi'ound indeed. Delving deeper into the opinions of this Court, they reflect — unless I misapprehend their meaning — that the dissenting judge has been willing to find “prejudice” in at least four sorts of situations, which I shall attempt to identify roughly: (1) Where the record discloses the presence of demonstrable and measurable harm to the accused. (2) Where there is an indication of the likelihood — in varying degrees — that the accused was harmed; that is,’ that he might have been injured. (3) The sort of situation he was talking about in the special concurrence in the Berry case, whatever exactly that was. (4) The type of thing he had in mind in the majority opinion in Clay — for it will be recalled that he there found prejudice “for the reason that we cannot say one of the historic cornerstones of our system of civil jurisprudence is merely a formality of military procedure.” When Judge Latimer finds “prejudice,” what does he mean: prejudice 1, prejudice 2, prejudice 3, or prejudice 4? I can only suggest humbly — and in my brother’s own words — that to my mind “a practical application of . . . [these] principle[s] is most difficult, if not impossible.” And I say this for the reason that they appear to me to be “so incomprehensible and so lacking in identifiable standards that . . . [they] can be measured only by the whims of appellate judges.” Lest I be misunderstood, let me say in haste that I, too, find in each of the foregoing enumerated situations the potent seeds of reversal — and in this Judge Latimer and I are in hearty accord. However, we differ in the following respects. The reader may know that when I find “specific prejudice” I mean to include only (1) and (2) above; when I use the term" }, { "docid": "23642769", "title": "", "text": "indeed — for it may be observed that the Court was much more receptive than not to a suggestion of prejudice. The same is evident in Krulewitch v. United States, 336 US 440, 446, 93 L ed 790, 795, 69 S Ct 716: “We cannot say that the erroneous admission of the hearsay declaration may not have been the weight that tipped the scales against petitioner.” (Emphasis supplied) Having set our clear course in Lucas, Clay and Kellum to follow that of the Supreme Court in this area, I am sure that we should not now determine to set a new one, and hereafter to follow a meandering and elusive route of our own. I am convinced that this is exactly what Judge Latimer would have us do. V Little need be said of the application of the doctrine of general prejudice to the facts of the case at bar. It is apparent that a majority of this Court, for what it deemed to be sound reason, regarded the bipartite character of the court-martial under the Uniform Code as a structural member in the military judicial scheme. Once that decision was taken, the result reached here followed inexorably. It is equally apparent that Judge Latimer, for some reason, disagrees with this result. I say “for some reason” because, in light of his previous judicial conduct and utterances, I do not fully apprehend the rational basis for his action here. Since he has in fact, although perhaps unwittingly, accepted the logical core of general prejudice, I can only suppose that he does not conceive the “closed conference” to be a fit subject for its application. This, I suppose, is a matter of judicial judgment, and, while I cannot at all agree with his conclusion, I must acknowledge his freedom to do what he thinks best. It seems appropriate at this juncture to point out, however, that the “closed conference” problem is not unique to the field of military justice. Indeed, it has received the attention of the Supreme Court of the United States on more than one occasion. In Fillippon v." }, { "docid": "18628345", "title": "", "text": "a dissenting opinion, after reviewing the authorities, concluded (p. 83) that ‘the grounds upon which the decisions rest are, upon principle, applicable alike in cases of felonies and misdemeanors, although the consequences to the accused may be more evident as well as more serious in the former than in the latter cases.’ ” While we do not recommend to law officers that they accept waivers of substantial rights which are granted by the Code, we do not propose to support a rule which would permit defending counsel to induce error and then seek to take advantage of it on appeal. For the reasons indicated, the decision of the board of review is affirmed. Chief Judge Quinn concurs. BROSman, Judge (concurring): Of course, Judge Latimer’s solution of the present problem is the only sensible one — and he is unreservedly correct in suggesting that my reticence in the Glaze case constitutes no bar to outright concurrence here. There, I simply saw no reason for talking of waiver at all — for it was elsewhere made clear in the opinion that the accused possessed no shadow of right to exclude Colonel Bishop from membership in the court-martial. Additionally, many of my views on the subject of waiver have been discarded recently — for the regrettable, but practical, reason that, despite repeated efforts, I was unable to convince my brothers of their soundness. See my separate opinions in United States v. Fisher, 4 USCMA 152, 15 CMR 152; and United States v. Henry, 4 USCMA 158, 15 CMR 158. It has been responsibly said that discretion is the better part of valor — and this is true as well, I suspect, of judicial effectiveness. In my view, too, courts-martial — including appointed defense counsel — have matured greatly during the past several years. Cf. my separate opinion in United States v. Smith, 2 USCMA 440, 9 CMR 70. Wholly apart from these orderly withdrawals, however, I would find no difficulty in supporting the majority’s opinion without qualification— for, if. I ever saw an express and informed waiver, I find it here. As I" }, { "docid": "5341286", "title": "", "text": "the very directive under whose authority the lecture was purportedly given. The vital effect of the context within which the pronouncement here was made may be compared to the principle that even free speech is a qualified right. Thus, one is not privileged to shout “Fire” in a crowded theater. Government appellate counsel have urged that the instructions of the law officer removed all flaws resulting from the Staff Judge Advocate’s lecture. We are inclined to doubt that such prejudice could be rectified by instructions of any sort. Pretermitting this point, however, we observe that the instructions in the case at bar are not clear, pointed and specific enough to amount to a direction that court members should put the words of the pretrial lecturer out of their minds, and should draw no inference whatever from the circumstance that the case had been referred for trial. This much, we think, is required. Moreover, the instructions relied on by the Government were given at the end of the trial as instructions usually are — and not prior to arraignment, and while the issue of the Staff Judge Advocate’s lecture was still fresh in the court members’ minds. Further, the instructions relied on came to no more than the conventional ones dealing with the presumption of innocence, reasonable doubt, and the like— and no slightest effort was made to link their content to the peculiarities of the present situation. LatimeR, Judge (dissenting): I dissent. I am unable to accept the conclusion of the majority that this case should be reversed. The precise le- gal reasons for the reversal are not spelled out but I sense an attempted admixture of sanctions and specific prejudice. For my purposes, it is unnecessary to unscramble them as; whether they are considered separate or together, they do not establish good reason to grant a rehearing. As I view this record there is only one legal question involved and that is, was. the accused denied a trial by a fair and impartial court-martial? I conclude he was not,- and in arriving at my conclusion I am willing to" }, { "docid": "22227013", "title": "", "text": "years. Any reduction in the amount of his sentence imposed on the one charge was solely and exclusively within the control of a person who had been offended against, and it could be adjusted according to his conscience. Human behavior is such that an injured party might be inclined to be more severe in approving the sentence than would a person entirely untouched by the crime. While General Lee reduced the sentence, who can say what, if any, additional remission might have been made by one who had no interest in the matter. Again, the right to an impartial review is an important right which must be recognized in the military judicial system and an accused is entitled to have the record reviewed and the limits of his sentence fixed by one who is free from any connection with the controversy. Accordingly, we find substantial rights of the accused were materially prejudiced, and we answer the question certified as follows: Under the circumstances of this case Brigadier General Morris J. Lee was disqualified to act as convening, and reviewing authority in this case. The holding of the board of review is reversed and the cause remanded to the Judge Advocate General of the Air Force for action not inconsistent with this opinion. Chief Judge Quinn concurs. Paul W. BROsman, Judge: (concurring in the result) I concur fully in the result in this ease. I do not understand Judge Latimer to evaluate the error it contains as jurisdictional — whatever exactly this term may mean. I do understand him to have concluded that the substantial rights of the accused were materially prejudiced. I am sure he is correct in this' determination. Without, however, inquiring whether the record reflects a basis for a finding of specific prejudice as developed in United States v. Lee. (No. 200), 1 USCMA 212, decided March 13, 1952, 2 CMR 118, I prefer to bottom my concurrence on the concept of general prejudice, as applied by this Court in United States v. Berry, (No. 69), 1 USCMA 235, decided March 18, 1952, 2 CMR 141. See also" }, { "docid": "23642754", "title": "", "text": "reversive result was required, there was no slightest shadow of specific prejudice in the premises. Every ruling of the president, vice law member, was incontestably correct, with a single possible exception, and as to it the board of review had disapproved related findings. Judge Latimer concurred in the result through a special opinion in which he rejected the ratio of the majority, specifically rejected the necessity for a search for specific prejudice, but agreed to reversal because he found “no difficulty in arriving at the conclusion that the accused was not accorded a fair trial, and that to me is ’prejudice.” (Emphasis supplied.) Now, there is a specific and “identifiable” standard for the ages! I submit that in the Berry case the Judge freely accepted the core of the doctrine of general prejudice, although he appears not to have liked the label. One might suppose from the tenor of the dissent that there exists a wide gulf separating its author from his two colleagues in the matter of prejudice. Although I am willing to concede the abyss, I am quite unable to see — as I have indicated — that it is one of any conceivable sort of substance. Invoking the adage to the effect that “the proof of the pudding is in the eating,” I turn to the past opinions of this Court. In doing so, I find that in approximately 184 decisions, Judge Latimer has dissented in but eight. Of these, no more than two purported to deal with the subject of prejudice — and in them Judge Latimer declined ostensibly to agree with the majority’s conclusion that prejudice was present. United States v. Gilbertson (No. 318), 4 CMR 57, decided July 22, 1952; United States v. Strong (No. 244), 5 CMR 55, decided August 27, 1952. I have, suggested that these dissents merely purported to fall within the area of prejudice — for, after scrutinizing them, I am genuinely unable to determine whether this was in truth their basis, or whether the Judge disagreed with the majority on some other ground. However this may be, I submit" }, { "docid": "22909800", "title": "", "text": "are found in several answers of medical witnesses. In practically all instances the questions asked had been answered adverse to the accused but the witness went on to explain the conclusions reached by him. The explanation being offered did not have a tendency to weaken the answer and the omissions could not prejudice the accused. Without dealing with the other omissions separately and specifically, we can gather them together and conclude readily that not one fact of substance or materiality to a legal or factual issue is missing from the transcript. The totality of omissions in this record becomes so unimportant and so uninfluen-tial when viewed in the light of the whole record, that it approaches nothingness. For that reason, we conclude the right of appeal guaranteed to the accused has been fully accorded to him. While we believe the stenographer who transcribed these notes could have better performed his task, the record for all practical purposes complies with both the Code and the Manual requirements. The decision of the board of review is affirmed. Chief Judge Quinn concurs. Brosman, Judge (concurring): I agree fully with the majority. This separate opinion is added — perhaps unnecessarily — for the purpose of rendering unmistakable the basis for our assurance that the instant case is distinguishable from United States v. Whitman, cited in the principal opinion. There, certain parts of the record were frankly narrative in form, and no sort of effort was made to set them down verbatim. Here, however, a verbatim record was distinctly attempted throughout the proceedings, and the specific question before us is whether the record was denied this essential quality through lacunae produced by inaudibility. With my brothers, I do not think it was — and for the reasons ably presented by Judge Latimer. For every reason of function, we must avoid assuming a doctrinaire attitude in determining both what is a complete record and what is a verbatim one. See United States v. Kupfer, 3 USCMA 478, 13 CMR 34, decided this date. If we are to escape this pitfall, we have no choice but to" }, { "docid": "23583151", "title": "", "text": "opportunity to object. Further, if no affirmative statement of the instructions appears in the record, reviewing authorities are handicapped in ascertaining the legal standard applied by the court in its deliberations on the findings. We have no disposition to criticize referral to the Manual for pertinent amplifying material after full instruction on the elements has been given. This may well be helpful to the court. However, our previous decisions on the necessity of instructions in different types of cases emphasize the duty of the law officer and the president to consider. carefully the charges, the lesser included offenses, the evidence, and the defense theories, before instructing the court on the law. This responsibility is a serious one and cannot be fulfilled by summary reference to a Manual discussion. We therefore conclude that referral to the Manual does not constitute an adequate instruction and cannot cure an otherwise inadequate Üistructipn, ^ The inadequacy of the instructions here requires reversal. “It is not for us to determine what the court members would have found had they been properly advised on the elements.” United States v. Rhoden, (No. 153), 1 USCMA 193, 2 CMR 99, decided February 26, 1952; Little v. United States, 73 F2d 861, 866 (CA10th Cir). The decision of the board of review is reversed as to the findings on the misbehavior charge and the case is remanded to The Judge Advocate General for rehearing on that charge or for referral to a board of review for reconsideration of the sentence. Judge BROSMAN concurs. LatimeR, Judge (dissenting): I dissent. While I do not necessarily recommend the method used by the law officer in instructing the court I, nevertheless, am unable to find any material prejudice to a substantial right of the accused. Such being the case, I do not concur in the opinion of the Court. The Manual for Courts-Martial, United States, 1951, paragraph 73a, in discussing instructions provides as follows: . . The instruction may be given in the language of the applicable subparagraph. . . .” It is admitted that the law officer gave the elements of the" }, { "docid": "23642755", "title": "", "text": "the abyss, I am quite unable to see — as I have indicated — that it is one of any conceivable sort of substance. Invoking the adage to the effect that “the proof of the pudding is in the eating,” I turn to the past opinions of this Court. In doing so, I find that in approximately 184 decisions, Judge Latimer has dissented in but eight. Of these, no more than two purported to deal with the subject of prejudice — and in them Judge Latimer declined ostensibly to agree with the majority’s conclusion that prejudice was present. United States v. Gilbertson (No. 318), 4 CMR 57, decided July 22, 1952; United States v. Strong (No. 244), 5 CMR 55, decided August 27, 1952. I have, suggested that these dissents merely purported to fall within the area of prejudice — for, after scrutinizing them, I am genuinely unable to determine whether this was in truth their basis, or whether the Judge disagreed with the majority on some other ground. However this may be, I submit that on the basis of the record, it is sadly clear that my brother is waging what is essentially a war of tags and labels — a really pointless debate in the sphere of semantics. The past decisional record is also revealing in a further particular. Those who criticize — if they would demand a respectful audience — must, as a usual thing, be prepared to offer an alternative to the solution with which they disagree. I find that the phrase which appears most frequently in Judge Latimer’s conclusions that prejudice is present is that there was a “reasonable probability” that the accused was, in fact, harmed. United States v. Clark (No. 190), 2 CMR 107, decided February 29, 1952; United States v. Hemp (No. 290), 3 CMR 14, decided April 8, 1952; United States v. Moynihan (No. 278), 3 CMR 152, decided April 21, 1952; United States v. Boone (No. 320), 3 CMR 115, decided May 9, 1952; United States v. Simmons (No. 505), 5 CMR 119, decided September 26, 1952. See United States" }, { "docid": "5332091", "title": "", "text": "serve as a basis for review of the sentence by the convening authority, by a board of review, by The Judge Advocate General, and even by the Secretary of the Department concerned unless it is — as it purports to be — a fair and untainted appraisal of the advisability of clemency action made after personal consultation with the accused. IV Because there is error here affecting the substantial rights of the accused, it is manifest that I can- not agree to affirming the decision of the board of review. Yet it will be noted that there has been no suggestion in this case that either the findings or the sentence — as the latter came from the court — were touched by error as a result of the questioned post-trial interview. Under such circumstances, service boards of review have, on occasion, provided that the infected staff judge advocate’s review be superseded by one free from suspicion. United States v. Eisenhard [CM 372982], 16 CMR 315; United States v. Bryant [ACM 8270], 16 CMR 747. Finding nothing in the nature of the error here which merits more severe reversive action, I am willing to adopt a like alternative in this case. After all, I cherish no wish to throw out the baby with the bath water. Accordingly, I concur in the opinion of Judge Quinn. Latimer, Judge (dissenting): I dissent. I I dissented in United States v. Coulter, 3 USCMA 657, 14 CMR 75, and I there pointed out particularly that a rehearing should not be granted when, by every known standard, an accused was entitled to no more than a reconsideration of the sentence. My associates have now joined me in that regard, but they have opened up new vistas through which they find error and prejudice. In order to show that the Court has gone much further to reverse this conviction than it did to set aside the one in Coulter, supra, I state the facts I find in the record. In doing so, I recognize I may repeat some already mentioned. Accused was charged with, and found" }, { "docid": "23642753", "title": "", "text": "lawyers and judges, the term “prejudice” does not mean harm in a dictionary sense, but rather some defensible and entirely appropriate variety of legal harm. The dissenting opinion has announced that “a practical application of the principle [general prejudice] is most difficult, if not impossible” for the reason that it “is so incomprehensible and so lacking in identifiable standards that it can be measured only by the individual whims of appellate judges.” Let us consider this criticism for a moment, and, as foundational thereto, let us contemplate Judge Latimer’s action and language in United States v. Berry (No. 69), 2 CMR 141, decided March 18, 1952, the opinion first applying the doctrine of general prejudice. In this case — tried under the old procedure — the president of the court-martial substantially usurped the functions of the law member. All three judges of this Court were in complete accord that reversal was demanded, and the present majority reached that result through an invocation of the principle of general prejudice. This device was utilized because, although the reversive result was required, there was no slightest shadow of specific prejudice in the premises. Every ruling of the president, vice law member, was incontestably correct, with a single possible exception, and as to it the board of review had disapproved related findings. Judge Latimer concurred in the result through a special opinion in which he rejected the ratio of the majority, specifically rejected the necessity for a search for specific prejudice, but agreed to reversal because he found “no difficulty in arriving at the conclusion that the accused was not accorded a fair trial, and that to me is ’prejudice.” (Emphasis supplied.) Now, there is a specific and “identifiable” standard for the ages! I submit that in the Berry case the Judge freely accepted the core of the doctrine of general prejudice, although he appears not to have liked the label. One might suppose from the tenor of the dissent that there exists a wide gulf separating its author from his two colleagues in the matter of prejudice. Although I am willing to concede" }, { "docid": "23642756", "title": "", "text": "that on the basis of the record, it is sadly clear that my brother is waging what is essentially a war of tags and labels — a really pointless debate in the sphere of semantics. The past decisional record is also revealing in a further particular. Those who criticize — if they would demand a respectful audience — must, as a usual thing, be prepared to offer an alternative to the solution with which they disagree. I find that the phrase which appears most frequently in Judge Latimer’s conclusions that prejudice is present is that there was a “reasonable probability” that the accused was, in fact, harmed. United States v. Clark (No. 190), 2 CMR 107, decided February 29, 1952; United States v. Hemp (No. 290), 3 CMR 14, decided April 8, 1952; United States v. Moynihan (No. 278), 3 CMR 152, decided April 21, 1952; United States v. Boone (No. 320), 3 CMR 115, decided May 9, 1952; United States v. Simmons (No. 505), 5 CMR 119, decided September 26, 1952. See United States v. Rhoden (No. 153), 2 CMR 99, decided February 26, 1952. If this is the surrogate proposed as a remedy for the vagueness asserted to be inherent in “general” prejudice, I am afraid the critic stands on insecure gi'ound indeed. Delving deeper into the opinions of this Court, they reflect — unless I misapprehend their meaning — that the dissenting judge has been willing to find “prejudice” in at least four sorts of situations, which I shall attempt to identify roughly: (1) Where the record discloses the presence of demonstrable and measurable harm to the accused. (2) Where there is an indication of the likelihood — in varying degrees — that the accused was harmed; that is,’ that he might have been injured. (3) The sort of situation he was talking about in the special concurrence in the Berry case, whatever exactly that was. (4) The type of thing he had in mind in the majority opinion in Clay — for it will be recalled that he there found prejudice “for the reason that we" }, { "docid": "23642773", "title": "", "text": "of the defendant regardless of the nature or propriety of the instruction given. The inquiry of the jury and the trial judge’s response were not reported by the court stenographer. The record does not disclose the, phraseology of the jury’s question. Consequently we cannot know whether the instructions given, even though entirely sound as abstract legal statements, were appropriate to answer it, or whether additional instructions, appropriate and indeed necessary to supplement those given, might not have been suggested to the trial judge by counsel for the defendant if he had been given the opportunity to be present.” [114 F2d at 823] [Emphasis supplied] In frankness, I am not prepared to go so far as the Third Circuit appears to have done. That is, I do not regard a proscribed law officer-court conference as necessarily requiring reversal in every case — no matter what the state of the record or the subject of the conference. Nevertheless, the importance to accused persons of the right involved is there made unmistakably clear. Judge Latimer' has also questioned the action of the majority in applying the doctrine of general prejudice to the “closed conference” on what might be termed a temporary basis. This, it is said, is patent anomaly. Although not at all without legal precedent, let us concede arguendo that it is unusual— that is, on its face. However, he may be sure that the device was not adopted blindly. The concept of a bipartite court-martial is utterly new to the sphere of military justice — as are many other significant requirements, which may be comprehended within some such phrase as “the reign of law.” It was simply determined by a majority of this Court that the surest and shortest route to establishing this particular legal idea securely within the framework of the military scheme lay in drawing violations up short through utilization of the principle of general prejudice. Policy was, of course, the foundation for the course adopted. Accepted as a matter of policy, any conceivable surface anomaly gives way to basic soundness. Finally, Judge Latimer is concerned over what he" }, { "docid": "23642758", "title": "", "text": "cannot say one of the historic cornerstones of our system of civil jurisprudence is merely a formality of military procedure.” When Judge Latimer finds “prejudice,” what does he mean: prejudice 1, prejudice 2, prejudice 3, or prejudice 4? I can only suggest humbly — and in my brother’s own words — that to my mind “a practical application of . . . [these] principle[s] is most difficult, if not impossible.” And I say this for the reason that they appear to me to be “so incomprehensible and so lacking in identifiable standards that . . . [they] can be measured only by the whims of appellate judges.” Lest I be misunderstood, let me say in haste that I, too, find in each of the foregoing enumerated situations the potent seeds of reversal — and in this Judge Latimer and I are in hearty accord. However, we differ in the following respects. The reader may know that when I find “specific prejudice” I mean to include only (1) and (2) above; when I use the term “general prejudice” I intend to refer only to (3) — and I do not concern myself with specific prejudice; and when I say “military due process” I have reference only to (4) — and here, too, I do not search for specific prejudice. Does this not help just a little? In fine, it is submitted that, in the doctrine of general prejudice, we have a tool which is at once sharper-edged and more selective than the principle of bare prejudice, as well as more descriptive, more realistic and, I believe, genuinely more cognitive of what is actually being done. IV What are frequently called “harmless error” statutes, such as Article 59(a) of the Uniform Code, supra, are in no way novel. See Rule 52(a), Federal Rules Criminal Procedure, 28 USC § 2111. Nor have they operated to abrogate any of the thinking or practices reported earlier herein. I am certainly aware of the admitted evils they were intended to obviate, and I am also familiar with their history. Moreover, no one is more sympathetic than" }, { "docid": "23642752", "title": "", "text": "in the record sufficient evidence of guilt. To the man in the street, I suspect, an accused whose guilt has been established by overwhelming evidence could hardly be “prejudiced” in point of bare fact by any procedural or administrative error at his trial. Now my brother is unwilling to go this far — and quite properly. In fact, he has expressly said as much in the Clay case — and he certainly and rightly held to this effect. All of this can only mean that when he deals with the problem of prejudice, he leaves the English language and enters the realm of “lawyers’ talk” — and the same is true of all of us. Now there is nothing at all wrong with “lawyers’ talk” — it is, in fact, at the heart of my position in this very case. At the same time, it is tremendously important that, when we use it, we know what we are doing, and exactly what is meant by its vocabulary. It is quite apparent that, as used by lawyers and judges, the term “prejudice” does not mean harm in a dictionary sense, but rather some defensible and entirely appropriate variety of legal harm. The dissenting opinion has announced that “a practical application of the principle [general prejudice] is most difficult, if not impossible” for the reason that it “is so incomprehensible and so lacking in identifiable standards that it can be measured only by the individual whims of appellate judges.” Let us consider this criticism for a moment, and, as foundational thereto, let us contemplate Judge Latimer’s action and language in United States v. Berry (No. 69), 2 CMR 141, decided March 18, 1952, the opinion first applying the doctrine of general prejudice. In this case — tried under the old procedure — the president of the court-martial substantially usurped the functions of the law member. All three judges of this Court were in complete accord that reversal was demanded, and the present majority reached that result through an invocation of the principle of general prejudice. This device was utilized because, although the" } ]

[ { "docid": "23260739", "title": "", "text": "WYZANSKI, District Judge. This is a petition under § 3633 to enforce a summons purportedly issued under § 3614 of the Internal Revenue Code, 26 U.S.C.A. §§ 3614 and 3633. The first •of these sections reads as follows: (a) “To Determine liability of the taxpayer. The Commissioner, for the purpose of ascertaining the correctness of any return or for the purpose of making a return where none has been made, is authorized, by any officer or employee of the Bureau of Internal Revenue, including the field service, designated by him for that purpose, to examine any books, papers, records, or memoranda bearing upon the matters required to be included in the return, and may require the attendance of the person rendering the return or of any officer or employee of such person, or the attendance of any other person having knowledge in the premises, and may take his testimony with reference to the matter required by law to be included in such return, with power to administer oaths to such person or persons.” John J. Cavanagh, Special Agent of the Internal Revenue Bureau, served upon John J. M. O’Connor a subpoena duces tecum directing the production of papers bearing upon the 1946 to 1950 income tax returns of Frank Iaconi. Since O’Connor refused to obey the subpoena, Cavanagh petitions this court to enforce it. On the filing of the petition an order to show cause was made returnable October 19, 1953. The facts were agreed upon by counsel for the Special Agent, counsel for O’Connor, and counsel for Iaconi. Indeed Iaconi sought to intervene in the proceedings, but this Court denied him the right to do so, and limited him to having his views presented by counsel as amicus curiae. Upon the agreed facts it appears that Iaconi engaged O’Connor as an accountant. In that capacity O’Connor used work sheets and other papers in preparing Iaconi’s tax returns. Months ago, under specific directions from higher authority in the Bureau, Cavanagh conducted an investigation into Iaconi’s tax returns. Thereafter he made a report upon such matters to his superior authorities. Cavanagh" } ]

[ { "docid": "5873855", "title": "", "text": "after indictment, no subpoena can run against the accused. There is no constitutional question as to the power of the Service to question, or subpoena records of third parties either before or after indictment. In cases in which the courts inveigh against the use of 7602 by a special agent, broad language is sometimes used to limit the authority because this effort has usually been made to obtain evidence from the taxpayer. The language is not apt and, is not controlling, if the subpoena power is being used to compel evidence by third parties. We have merely a problem of statutory construction of Section 7602. There being no right which the appellant asserts that he could present to warrant the trial court’s refusal to enforce the subpoena, the right to intervene has not been established. The language in Reisman “in addition, third parties might intervene to protect their interests, or in the event the taxpayer is not a party to the summons before the hearing officer, he, too, may intervene” is, of course, limited to the right to intervene if the person seeking the right can demonstrate to the court that he has interests to protect. Here, Donaldson’s petition has alleged no such interest. The trial court correctly denied the motion to intervene. The judgment is affirmed. . “§ 7602. Examination of books and witnesses. For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax or collecting any such liability, the Secretary or his delegate is authorized— (1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry; (2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the" }, { "docid": "510516", "title": "", "text": "5, 1968. Respondent contends that he has reason to believe that the Internal Revenue summons may have been issued in order to assist the U. S. Departments of Labor and Justice in reinstituting and perfecting a new indictment relating to the same matter. He asserts that discovery is needed to disclose the “purpose” or “motive” behind the administrative summons. The government takes the position that an administrative summons is improper only if used to gather evidence in aid of a currently existing criminal prosecution; that since there is no indictment currently pending against Local 57, there can be no improper purpose in issuing the administrative summons and therefore no reason to grant discovery. The government further argues that, even if the facts alleged by respondent would support an “improper purpose” defense, the use of discovery in proceedings to enforce an administrative summons should be severely limited. There is apparently only one reported case in which a federal district court has refused to enforce an Internal Revenue summons on the grounds that it was not issued for a proper purpose. United States v. O’Connor, 118 F.Supp. 248 (D.Mass.1953). There the Internal Revenue agent admitted that at least one of the purposes for the issuance of the administrative subpoena was to aid the Department of Justice in a criminal prosecution then pending against the taxpayer. Since the agent also admitted that he did not have any civil matter relating to that taxpayer pending before him, the court refused to enforce the subpoena. In Boren v. Tucker, 239 F.2d 767 (9th Cir. 1956), the Ninth Circuit approved the result in O’Connor but distinguished it on its facts. In Boren an administrative summons was issued to investigate the taxpayer’s liability after the statute of limitations had run for all but fraudulent tax returns. The court held the summons valid on the grounds that, even though the investigation might lead to criminal prosecution, it was also designed to determine the civil liability of the taxpayer. The court stressed that Congress had not limited the Treasury’s power to issue administrative summonses “solely” to investigate civil liability." }, { "docid": "22218006", "title": "", "text": "the course of a taxpayer investigation issues a summons for production of records to a close corporation controlled by the taxpayer or to a bank with which the taxpayer or the corporation has conducted business. The taxpayer, pursuant to statutory authority, instructs the recipient of the summons not to comply. The United States and the special agent conducting the investigation then institute the enforcement proceedings that are contested here. Despite the similarities among these cases, we must relate the facts in each case to understand the particular issues involved. United States v. Kis In July 1978, the Criminal Investigation Division of the Internal Revenue Service in Milwaukee opened a formal investigation to determine the correct income tax liabilities of George A. Meyers, who had filed documents designated as “protest-type returns” for the years 1975, 1976, and 1977. Special Agent Glenn J. Kulas, who was assigned to the investigation, issued summonses to officers of several banks with whom Meyers had conducted business. Meyers, pursuant to section 7609 of the Internal Revenue Code of 1954, 26 U.S.C. § 7609 (1976), directed the officers, respondents in these cases, not to comply with the summonses, and the United States ■ and Special Agent Kulas instituted enforcement proceedings in the Eastern District of Wisconsin on March 6, 1979. In petitions seeking enforcement, the Government asserted that Kulas was conducting an investigation for the purpose of establishing Meyers’s correct income tax liabilities for the years in question and that the testimony and information sought are necessary for that purpose; that the information sought is not in the possession of the Internal Revenue Service; and that all administrative steps required by the IRS for the issuance of summonses have been taken. Following an order to show cause why the summonses should not be enforced, Meyers filed a responsive pleading that denied the assertions made in the Government’s petition. He also alleged, among other things, that the investigation violated his Fifth Amendment rights and that its purpose was “to gain information so as to prosecute [him] criminally.” Meyers also filed five pages of interrogatories, which the Government moved" }, { "docid": "3504278", "title": "", "text": "GEWIN, Circuit Judge: The United States and Anthony Butzek appeal from the district court’s orders denying enforcement of two Internal Revenue summonses. We reverse. Butzek is a Special Agent of the Internal Revenue Service. In September 1976 he was assigned by the agency’s Criminal Investigation Division to investigate the 1971-1975 income tax liabilities of Edwin A. and Natalie K. Moll. The Criminal Investigation Division initiated the inquiry after its probe of Moll’s corporation, Professional Medical Guidance Corporation, became stymied. Butzek secured the assignment of a revenue agent to the investigation for the purpose of determining any potential civil tax liabilities. During the investigation, Butzek contacted accountant Earl Epsteen, who had prepared the taxpayers’ income tax returns for the years in question, and requested the records and documents relative to the preparation of the returns. Epsteen claimed that he had turned the records over to Moll. Butzek contacted Moll, advised him of his Fifth Amendment right not to answer questions, as required by agency policy, and requested him to produce the records. Moll refused and pursuant to § 7602 of the Internal Revenue Code the agent served a summons on him requiring production of all records, correspondence and documents of Earl Epsteen relating to preparation of appellee's returns for the years 1971-1975. Upon receipt of the summons, Moll informed Butzek that he had turned the workpapers over to his attorney, George Collins. Accordingly, the agent served a similar summons on Collins demanding the documents. Collins refused to comply and the government initiated enforcement proceedings in the district court. Because it believed Moll still had possession of some of the records, the government requested enforcement of both summonses. In denying enforcement, the district judge held that attorney Collins was protected from the summonses by the attorney-client privilege. As for Moll, the court found that he was the subject of a criminal investigation and hence was privileged under the Fifth Amendment to refuse to comply with the summonses. Because the instant case is indistinguishable from Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), we must reverse the" }, { "docid": "18373837", "title": "", "text": "33. At the time the summonses were issued, Special Agent Box had made no decision to recommend that the investigation be referred for criminal prosecution. (Tr. 15; Box Dep. II 32). 34. The summonses were not issued by the IRS solely to obtain information for criminal prosecution. DISCUSSION Section 7602 of the Internal Revenue Code, 26 U.S.C. § 7602, empowers the IRS to issue summonses to obtain testimony and documents for the purpose of “ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax ... or collecting any such liability . . . . ” Although the statute contains no such limitation, it has long been settled that in exercising its summons power, the IRS may not obtain information for the sole purpose of pursuing a criminal investigation. Donaldson v. United States, 400 U.S. 517, 533, 91 S.Ct. 534, 543, 27 L.Ed.2d 580 (1971). In resisting enforcement of the summonses in question here, McNulty contends that they were issued for the sole purpose of uncovering information which will eventually be used in a criminal prosecution. The disposition of this contention requires a brief discussion of the standards governing the enforceability of an IRS summons. The crucial inquiry in a case of this nature is to determine the institutional posture of the IRS at the time the summons is issued. In United States v. LaSalle National Bank, 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978), the Supreme Court determined that the primary limitation upon the use of the summons power occurs when the IRS refers an investigation to the Justice Department for criminal prosecution. Once such a referral has been made, the IRS is conclusively precluded from issuing summonses for taxpayer-related records pertaining to the matter under investigation. Id. at 311, 98 S.Ct. at 2365. See also United States v. Garden State National Bank, 607 F.2d 61, 67 (3d Cir. 1979). Where an investigation has not yet been referred to the Justice Department, a summons is presumptively valid and subject to challenge by the" }, { "docid": "12719328", "title": "", "text": "made. See also United States v. Schwartz, 469 F.2d 977, 985-86 (5th Cir. 1972). We agree with the decision of the Seventh Circuit in United States v. Gilpin, 542 F.2d 38, 40 (7th Cir. 1976), which held that “no second inspection notice is required [under § 7605(b)] if it is factually established that the Agent involved had not completed his examination when he referred the case to a Special Agent for further investigation.” In the present case, Agent Williams testified that when he made his referral to the Criminal Investigation Division, he had not completed his investigation into the Hortons’ liability for the 1975 and 1976 tax years. In view of these uncontroverted facts, we conclude that the summons herein was part of an ongoing investigation that had commenced with Agent Williams’ audit in July and August of 1977, that the audit had not been completed when the matter was referred to Special Agent Rogers of the Criminal Investigation Division, and that, therefore, the “additional inspection” provisions of § 7605(b) are inapplicable. The judgment of the district court is reversed, and the case is remanded with instructions to grant enforcement of the IRS summons. REVERSED AND REMANDED. . I.R.C. § 7602 [26 U.S.C. § 7602] provides: Examination of books and witnesses For the purpose of ascertaining correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect to any internal revenue tax, or collecting any such liability, the Secretary or his delegate is authorized— (1) To examine any books, papers, records or other data which may be relevant or material to such inquiry; (2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax or required to perform the act, or any other person the" }, { "docid": "5256888", "title": "", "text": "several examinations. In September 1970, the taxpayers notified the Internal Revenue Service that the state agents had finished their work and Agents Buescher and Koenig returned to the offices of counsel, where the same books and records were again made available for them. Agent Koenig and Agent Johnson completed the income tax audit of Kendrick for the year 1970 by the end of November, and they issued their report shortly after the beginning of the following year. Agent Buescher did not recommence his inspection of the books, but listed certain records that were there made available. Subsequently, Special Agent Arthur Ronat was assigned the task of investigating the excise tax liability of the two taxpayers for the years 1965 through 1971, and on March 28, 1973 the summonses here at issue were issued. Agent Johnson testified that he had spent 114 hours during the months of September, October and November inspecting the books in the course of his income tax investigation for the year 1970. Agent Buescher testified that he had spent 46 hours on the books and records of United and 12 hours on the books of Kendrick during the month of March prior to the suspension of his investigation. The record is silent as to any communications between the taxpayers or their lawyers and the Internal Revenue agents or special agent indicating that they considered the fuel tax inspection' at an end. No further informal request was made by the Internal Revenue Service for permission to recommence the inspection. The summonses were sought on behalf of Special Agent Ronat who testified at the hearing on enforcement of the summons that he was investigating as to the existence of a civil tax liability. However, the Court takes judicial notice of the fact that special agents of the Internal Revenue Service are authorized subsequently, upon finding the existence of civil liability, to make an initial investigation as to possible criminal liability as well. Agent Buescher had testified that during his March inquiry he had been unable to find that any fuel tax returns or payments had been made. The assignment" }, { "docid": "13369566", "title": "", "text": "The summonses were issued some ten months before the indictment was returned. They were issued by a Special Agent just beginning his investigation of the taxpayers’ returns, at a time when no final conclusion had, or even could have, been made as to whether criminal action was indicated. However, due to delays resulting from appellant’s efforts to prevent compliance, the government was forced to secure an indictment against the taxpayers before the summonses could be enforced in order to prevent the statute of limitations on criminal prosecutions from running. The question before us is whether the right to enforcement under those circumstances is thereby nullified and the government forced to resort solely to Rule 17 of the Federal Rules of Criminal Procedure. Section 7602 authorizes the Secretary of the Treasury or his delegate to issue a summons for the examination of books, papers and other documents and records “For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability, * * The taxpayer, Percy C. Magnus, claims that, since he has been indicted, albeit some ten months subsequent to the issuance of the summonses, the investigative power of the government must be limited exclusively to the discovery and inspection provisions of Rule 17 of the Federal Rules of Criminal Procedure and that once an indictment has been returned, service or enforcement of such summonses is absolutely foreclosed. For this proposition appellant relies heavily on United States v. O’Connor, 118 F.Supp. 248 (D.Mass.1953) and Application of Myers, 202 F.Supp. 212 (E.D.Pa.1962). O’Connor involved a summons directed to an accountant of the taxpayer under investigation. A Special Agent had completed his investigation, turned his report over to higher authorities and an indictment had already been returned when the Special Agent issued a summons against the accountant. The Special Agent there admitted that the summons was for" }, { "docid": "3985108", "title": "", "text": "attached a memorandum requesting comments and an explanation for the discrepancies. Barrett held a series of discussions with his Group Manager and in February 1981 referred the case to the Criminal Investigation Division of the IRS. In early 1981, Special Agent Mark Lawler, who had been assigned to the investigation, issued a summons to the taxpayers requesting production of various records and documents in their possession. Taxpayers complied with this summons and brought in the requested records. Based on its examination of these records, the IRS decided to expand its investigation to include taxpayers’ 1977 tax returns. Between May 21,1981 and June 23, 1981, Special Agent Lawler issued an IRS summons, pursuant to 26 U.S.C. § 7602 (1976), to eight third-party recordkeepers seeking various records and documents in their possession relating to taxpayers’ financial activities. Taxpayers directed these record-keepers not to comply with the summonses. On January 26, 1982, the Government filed petitions with the district court for enforcement of these eight summonses. Taxpayers moved to intervene pursuant to 26 U.S.C. § 7609(b)(1) (1976), and filed answers to the Government’s petitions. Taxpayers also filed a deposition notice and a Rule 34 Request for Production of Documents, and, in preparation for the show cause hearing, served subpoenas duces tecum upon several IRS employees who participated in the investigation. The district court consolidated the eight summons enforcement proceedings, and on April 30, 1982, ordered that the IRS summonses be enforced. The court quashed taxpayers’ deposition notice and subpoenas duces tecum and issued a protective order covering the Rule 34 document request. This appeal followed. I. The Good Faith Requirements of United States v. Powell Section 7602 of the Internal Revenue Code, 26 U.S.C. § 7602 (1976), provides that the IRS, through the use of an administrative summons, may examine any books, papers, records, or persons in determining the tax liability of any person or ascertaining the correctness of any return. The IRS, however, has no power of its own to enforce the summons but must apply to the district court in order to compel production of the requested materials. See 26 U.S.C." }, { "docid": "3985122", "title": "", "text": "elements inherently intertwined in tax investigation). The taxpayer must make a substantial preliminary showing of abuse of the court’s process before even limited discovery need be ordered. See United States v. Moon, 616 F.2d at 1047; United States v. Morgan Guaranty Trust Co., 572 F.2d 36, 42 n. 9 (2d Cir.), cert. denied, 439 U.S. 822, 99 S.Ct. 89, 58 L.Ed.2d 114 (1978); United States v. Salter, 432 F.2d 697, 700 (1st Cir.1970). In this case, taxpayers had an opportunity directly to examine several IRS employees who participated in the investigation. In addition, taxpayers were afforded a full opportunity to cross-examine the Government’s chief witness, Special Agent Lawler. Since taxpayers failed to raise any substantial question regarding the validity of the Government’s purpose, the district court was well within its discretion to deny taxpayers’ discovery requests and to quash the subpoenas duces tecum. The order of the district court enforcing the summonses is affirmed. The Honorable Clyde S. Cahill, United States District Judge for the Eastern District of Missouri. . Summonses were issued to the following recordkeepers: St. Louis Union Trust Co., United Missouri Bank of St. Louis, Bank of St. Louis, St. Louis County Bank, Landmark Central Bank & Trust Co., Community Federal Savings & Loan Association, Roosevelt Federal Savings & Loan Association, and Stix and Company, Inc. . Section 7602 provides in its entirety as follows: § 7602. Examination of books and witnesses For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability, the Secretary is authorized— (1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry; (2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing" }, { "docid": "19835985", "title": "", "text": "Internal Revenue Code of 1954.” Section 7602 of the Internal Revenue Code provides that an administrative summons may be issued by the Internal Revenue Service for the purpose of “ascertaining the correctness of any return, ... determining the liability of any person for any Internal Revenue tax, ... and inquiring into any offense connected with the administration or enforcement of the Internal Revenue laws.” 26 U.S.C. § 7602(a) and (b) (Supp.1982). However, no matter what the purpose of the administrative summons may be, no administrative summons may be issued after a Justice Department referral of the matter for criminal prosecution has been made. The sworn statements of Special Agent Grogan suffice to make a prima facie showing that the challenged administrative summonses have been issued for at least two proper purposes under the Internal Revenue Code, eg. to determine Drum’s liability for taxes and whether any criminal violations have been committed by Drum. Special Agent Grogan has also averred that the Muncy Bank and Trust Company and Northern Central Bank possess documents relevant to Drum’s financial affairs. In addition, Special Agent Grogan avers that no “Justice Department referral” has been made in this matter. The issuance of administrative summonses in the investigation of Drum is therefore not improper. Drum argues that before this Court denies his petition to quash the summonses or, alternatively, grant the motion of the United States summarily to enforce the same, he is entitled to a modest amount of discovery in order to gather the information necessary to rebut the above averments by Grogan that the summonses were issued for a proper purpose. Drum relies on the Third Circuit opinion in United States v. Genser, 595 F.2d 146 (3d Cir.1979), in support of this argument. As we have set forth in an earlier opinion in this case, Drum v. United States, Misc. No. 83-0051, slip op. (M.D.Pa., June 15, 1983) we are of the view that the discovery permitted by Genser before enforcement of Internal Revenue Service Summonses is no longer available where the petitioner seeks to quash a summons on the basis that it was" }, { "docid": "13369564", "title": "", "text": "application for a writ of certiorari. On April 1.0, 1962, ten months after the summonses were originally issued, an indictment was filed charging Percy Magnus with tax evasion and failure to file returns. Thereafter, certiorari was denied by the Supreme Court on June 11, 1962 (370 U.S. 918, 82 S.Ct. 1556, 8 L.Ed.2d 499). The corporation then sought on July 17, 1962, to stay enforcement and quash the summons directed to it, and the taxpayer Percy C. Magnus sought similar relief against the summons directed to the accountants. Both applications were denied in an opinion by Judge Dimock on September 19,- 1962, and it is this ruling that is the subject of this appeal. The appellant corporation is not the taxpayer. The records specified in the summons are the corporation’s, not the taxpayer’s^ From a procedural viewpoint, the petition to quash the summons directed to the corporation was made only by the corporation. The accountants to whom the other summons was directed made no motion to quash. The petition, in effect on behalf of the accountants, was made by the taxpayer himself. The appeals are taken by the corporation as to the summons directed to it and by Percy C. Magnus as to the summons directed to the accountants. The background facts reveal that the taxpayer Percy C. Magnus who owns 80% of the stock of the corporation did not file income tax returns for the years 1948 through 1957 or pay any income taxes during this period. After investigation had .been commenced, Percy C. and Margaret A. Magnus, his wife, filed delinquent returns for these years which disclosed a gross income for these years in excess of $1,280,000. The primary source of this income was derived from the corporation; the accountants, using the corporation’s books, prepared the delinquent returns. Through the issuance of the summons, the revenue agents sought to obtain access to the corporation’s books to ascertain what taxes, if any, should have been reported by the taxpayers for the years in question and to relevant papers, records or documents used by the accountants in preparing the returns." }, { "docid": "13369563", "title": "", "text": "LEONARD P. MOORE, Circuit Judge. This is an appeal from an order denying the quashing of Internal Revenue Service summonses issued on June 19, 1961, under Section 7602 of the 1954 Internal Revenue Code, directed to Mag-nus, Mabee & Reynard, Inc. (the corporation) and to Hurdman & Cranstoun (the accountants), requiring them to produce certain records relating to Percy C. Magnus and Margaret A. Magnus (the taxpayers) whose tax liabilities are under investigation. This is the second time these summonses have been before this court on a motion to quash. The first attack on the summonses was made by the taxpayers who moved to quash the summonses on June 29, 1961. Their application was denied by Judge Dimock on July 14, 1961, and reargument was denied (D.C., 196 F.Supp. 127). The taxpayers appealed. The decision below was affirmed in an opinion by this Court on February 13, 1962. (2 Cir., 299 F.2d 335). Petitions for rehearing and rehearing in bane were denied. A stay was granted on April 4, 1962, by Mr. Justice Harlan pending application for a writ of certiorari. On April 1.0, 1962, ten months after the summonses were originally issued, an indictment was filed charging Percy Magnus with tax evasion and failure to file returns. Thereafter, certiorari was denied by the Supreme Court on June 11, 1962 (370 U.S. 918, 82 S.Ct. 1556, 8 L.Ed.2d 499). The corporation then sought on July 17, 1962, to stay enforcement and quash the summons directed to it, and the taxpayer Percy C. Magnus sought similar relief against the summons directed to the accountants. Both applications were denied in an opinion by Judge Dimock on September 19,- 1962, and it is this ruling that is the subject of this appeal. The appellant corporation is not the taxpayer. The records specified in the summons are the corporation’s, not the taxpayer’s^ From a procedural viewpoint, the petition to quash the summons directed to the corporation was made only by the corporation. The accountants to whom the other summons was directed made no motion to quash. The petition, in effect on behalf of the" }, { "docid": "13369567", "title": "", "text": "revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability, * * The taxpayer, Percy C. Magnus, claims that, since he has been indicted, albeit some ten months subsequent to the issuance of the summonses, the investigative power of the government must be limited exclusively to the discovery and inspection provisions of Rule 17 of the Federal Rules of Criminal Procedure and that once an indictment has been returned, service or enforcement of such summonses is absolutely foreclosed. For this proposition appellant relies heavily on United States v. O’Connor, 118 F.Supp. 248 (D.Mass.1953) and Application of Myers, 202 F.Supp. 212 (E.D.Pa.1962). O’Connor involved a summons directed to an accountant of the taxpayer under investigation. A Special Agent had completed his investigation, turned his report over to higher authorities and an indictment had already been returned when the Special Agent issued a summons against the accountant. The Special Agent there admitted that the summons was for the purpose of criminal prosecution and that he had no matter involving the taxpayer presently pending before him when the summons was issued. In denying a government petition to enforce the summons, Judge Wyzanski was of the view that the pre-trial discovery powers of the government in criminal cases was severely limited and that the primary body for the compulsory disclosure of documents before trial is the Grand Jury. He further stated that: “To encourage the use of administrative subpoenas as a device for compulsory disclosure of testimony to be used in presentments of criminal cases would diminish one of the fundamental guarantees of liberty. Moreover, it would sanction the perversion of a statutory power. The power under § 3614 [now Section 7602] was granted for one purpose, and is now sought to be used in a direction entirely uncontemplated by the lawgivers.” (118 F.Supp. 248, 251). The Myers case, which involved a summons issued several days before the criminal prosecution was set for trial, is of a similar effect. Under the Federal Rules, discovery" }, { "docid": "23319851", "title": "", "text": "26 U.S.C.A. § 7402(b) and § 7604 (a). To each petition was appended an affidavit that Special Agent Bittman (Agent) was conducting an investigation to determine the correctness of Taxpayer’s returns, the failure of the summoned parties to respond, and the necessity of these records to ascertain the tax liability of Taxpayer. The District Court issued an order directing the respondents to show cause why the summonses should not be enforced. Newman for himself and for Imperial Hotel contested enforcement. Following the traditional pattern under the Civil Rules, Newman responded paragraph by paragraph. He admitted each allegation except that he expressly disclaimed knowledge sufficient to permit him to affirm or deny the allegations that this (i) “ * * * is a proceeding brought under authority of Sections 7402(b) and 7604(a) of the Internal Revenue Code of 1954, to judicially enforce an Internal Revenue Service summons” and that (ii) “ * * * petitioner, [Agent] Bittman, is conducting an investigation for the purpose of ascertaining the correctness of income tax returns filed by Donald A. Pollack for the years 1963 through 1966.” To this, perhaps out of a nostalgic hope that a federal court would heed state pleading practices, he threw in for good measure a blunderbuss denial of all that he had not expressly admitted or qualified. Taxpayer sought leave to intervene. In the proposed answer to the petition for enforcement, Taxpayer alleged that Agent was in bad faith in issuing summonses, that he was simply looking for evidence to use in a criminal proceeding, that the summons to Newman was overly broad and lacking in relevance to Taxpayer’s liability, that Agent lacked personal knowledge of the records requested in the summons, and that the summons would violate the Fourth and Fifth Amendment rights of Taxpayer. The District Court granted each petition to enforce the summonses. As for the intervention of Taxpayer, the Court allowed intervention and then prescribed what was described as a limited appearance in the proceedings before Agent, although this appearance turned out to be one giving Taxpayer a ringside seat, in which Taxpayer could not" }, { "docid": "510513", "title": "", "text": "McENTEE, Circuit Judge. On June 25, 1969, respondent, Lester H. Salter, a Providence, Rhode Island attorney, was served with an administrative summons requiring him to testify before Special Agent Robert Gray of the Internal Revenue Service “concerning the tax liabilities of International Union of Operating Engineers, Local 57, for the years 1958 through 1968, inclusive.” This summons was issued pursuant to 26 U.S.C. § 7602 (1964) which authorizes the Secretary of the Treasury or his delegate to issue administrative summonses “[f]or the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax, * * * or collecting any such liability.” Respondent appeared in response to the summons but refused to testify. As provided in 26 U.S.C. § 7604 (1964), Special Agent Gray petitioned the United States District Court for the District of Rhode Island to enforce the Internal Revenue summons. On November 3, 1969, respondent filed an answer, accompanied by a Memorandum of Law, contending that the summons should not'be enforced because it was issued for an improper purpose, viz., the securing of evidence or testimony for use solely in a criminal prosecution. In support of that contention, respondent alleged that Special Agent Gray had stated to respondent’s law partner that he wanted respondent’s testimony in order to obtain a “conviction.” Respondent further contended that the agent could not be interested in investigating the civil tax liabilities of Local 57, because it is a tax-exempt labor organization under § 501(c) (5) of the Internal Revenue Code of 1954 and because it has never engaged in any “business” unrelated to its tax exempt functions. In anticipation that the Internal Revenue Service might contend that Local 57 had taxable income from admission fees charged at games played by its softball team, respondent presented four arguments to support his contention that the income from this activity was not taxable. On November 10, 1969, respondent filed a motion under Fed.R.Civ.P. 34 for a discovery order requiring the government to produce certain documents for inspection, copying and photographing." }, { "docid": "13369568", "title": "", "text": "the purpose of criminal prosecution and that he had no matter involving the taxpayer presently pending before him when the summons was issued. In denying a government petition to enforce the summons, Judge Wyzanski was of the view that the pre-trial discovery powers of the government in criminal cases was severely limited and that the primary body for the compulsory disclosure of documents before trial is the Grand Jury. He further stated that: “To encourage the use of administrative subpoenas as a device for compulsory disclosure of testimony to be used in presentments of criminal cases would diminish one of the fundamental guarantees of liberty. Moreover, it would sanction the perversion of a statutory power. The power under § 3614 [now Section 7602] was granted for one purpose, and is now sought to be used in a direction entirely uncontemplated by the lawgivers.” (118 F.Supp. 248, 251). The Myers case, which involved a summons issued several days before the criminal prosecution was set for trial, is of a similar effect. Under the Federal Rules, discovery by the government is quite limited. Rule 16, the general discovery provision, applies only to defendants. Rule 17(c) was not intended to provide an additional means of discovery, but rather was meant to establish a liberal policy for the production, inspection and use of materials at the trial. Bowman Dairy Co. v. United States, 341 U.S. 214, 220-221, 71 S.Ct. 675, 95 L.Ed. 879 (1951). As the Ninth Circuit in Boren v. Tucker, 239 F.2d 767 (1956) made clear, where there is .a possibility of tax fraud, the taxpayer is faced with either a 50% penalty or a criminal prosecution or both. In investigating whether a fraudulent return changes the taxpayer’s liability, the Internal Revenue Service must weigh the possibility of criminal prosecution. The mere securing of an indictment does not conclude the task of the examining revenue agents. The Secretary or his delegate is charged with the responsibility of “making a return where none has been made” and verifying such returns as have been filed. The necessity of determining the correct tax liability and" }, { "docid": "2123712", "title": "", "text": "acceptability. The revenue officer apparently found indications that taxpayers did not adequately disclose their assets in making the settlement offer. His discoveries were eventually reported to the Intelligence Division of the Internal Revenue Service which in 1969 assigned a special agent to join him in a thorough investigation of the offer in compromise. Undoubtedly one purpose of this investigation was to determine whether taxpayers had committed criminal violations in making the settlement offer. When they learned that a special investigation was underway, taxpayers turned to White for counsel; he was officially appointed their attorney and representative-in-fact on a government power of attorney form filed with the Internal Revenue Service. White immediately contacted Voelkel and by November of 1969 had obtained from him not only the workpapers he used in preparing the offer in compromise but also all workpapers used in preparing taxpayers’ income tax returns for the years 1962 through 1968. It was agreed that White could keep Voelkel’s papers indefinitely but that he would return them upon completion of his representation of taxpayers. In 1970 taxpayers withdrew their offer in compromise. Shortly thereafter the Internal Revenue Service expanded the scope of its investigation into taxpayers’ affairs to include a review of their tax returns for the years 1966 through 1969 in order to determine among other things their correct tax liability for those years. In connection with this expanded investigation the summons in question was issued and-served on White. Although the Internal Revenue Service initially sought all of the workpapers in White’s possession, it subsequently modified its demands to encompass only those workpapers used by Voelkel in preparing taxpayers’ income tax returns for the years 1966 through 1968. When White refused to produce these workpapers, the government petitioned the district court for enforcement of the summons. At the time enforcement was requested, there had been no recommendation to prosecute either with respect to the tax returns under investigation or with respect to the offer in compromise. Resolution of this case begins with White’s contention that the summons served upon him pursuant to 26 U.S.C. § 7602 is unenforceable because" }, { "docid": "13369565", "title": "", "text": "accountants, was made by the taxpayer himself. The appeals are taken by the corporation as to the summons directed to it and by Percy C. Magnus as to the summons directed to the accountants. The background facts reveal that the taxpayer Percy C. Magnus who owns 80% of the stock of the corporation did not file income tax returns for the years 1948 through 1957 or pay any income taxes during this period. After investigation had .been commenced, Percy C. and Margaret A. Magnus, his wife, filed delinquent returns for these years which disclosed a gross income for these years in excess of $1,280,000. The primary source of this income was derived from the corporation; the accountants, using the corporation’s books, prepared the delinquent returns. Through the issuance of the summons, the revenue agents sought to obtain access to the corporation’s books to ascertain what taxes, if any, should have been reported by the taxpayers for the years in question and to relevant papers, records or documents used by the accountants in preparing the returns. The summonses were issued some ten months before the indictment was returned. They were issued by a Special Agent just beginning his investigation of the taxpayers’ returns, at a time when no final conclusion had, or even could have, been made as to whether criminal action was indicated. However, due to delays resulting from appellant’s efforts to prevent compliance, the government was forced to secure an indictment against the taxpayers before the summonses could be enforced in order to prevent the statute of limitations on criminal prosecutions from running. The question before us is whether the right to enforcement under those circumstances is thereby nullified and the government forced to resort solely to Rule 17 of the Federal Rules of Criminal Procedure. Section 7602 authorizes the Secretary of the Treasury or his delegate to issue a summons for the examination of books, papers and other documents and records “For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal" }, { "docid": "3985107", "title": "", "text": "JOHN R. GIBSON, Circuit Judge. Taxpayers James E. Lask and Ruth L. Lask appeal from the district court order directing enforcement of Internal Revenue Service summonses issued to various third-party recordkeepers. Taxpayers contend (1) that the IRS acted in bad faith in carrying out the investigation, (2) that a portion of the time period covered by the IRS summonses is barred by the statute of limitations contained in 26 U.S.C. § 6501(a) (1976), and (3) that the district court erred in denying taxpayers’ discovery requests and in quashing their trial subpoenas duces tecum. We affirm. In July 1980, Revenue Agent John Barrett, acting on information given to the IRS by an unidentified informant, began an investigation into the federal tax liability of taxpayers for 1978 and 1979. Using information which the taxpayers provided, Barrett found significant discrepancies between the amount of tax liability he calculated for 1978 and 1979 and the amount of tax liability taxpayers reported for those two years. Barrett provided taxpayers’ tax representative, Albert Grabel, with copies of his work papers and attached a memorandum requesting comments and an explanation for the discrepancies. Barrett held a series of discussions with his Group Manager and in February 1981 referred the case to the Criminal Investigation Division of the IRS. In early 1981, Special Agent Mark Lawler, who had been assigned to the investigation, issued a summons to the taxpayers requesting production of various records and documents in their possession. Taxpayers complied with this summons and brought in the requested records. Based on its examination of these records, the IRS decided to expand its investigation to include taxpayers’ 1977 tax returns. Between May 21,1981 and June 23, 1981, Special Agent Lawler issued an IRS summons, pursuant to 26 U.S.C. § 7602 (1976), to eight third-party recordkeepers seeking various records and documents in their possession relating to taxpayers’ financial activities. Taxpayers directed these record-keepers not to comply with the summonses. On January 26, 1982, the Government filed petitions with the district court for enforcement of these eight summonses. Taxpayers moved to intervene pursuant to 26 U.S.C. § 7609(b)(1) (1976), and" } ]

[ { "docid": "21010715", "title": "", "text": "judgment the case is governed by the principle of Sultan Ry. Co. v. Dept. of Labor (1928) 277 U.S. 135, 48 S.Ct. 505, 506, 72 L.Ed. 820, and cases there cited; see, too, Crowell v. Benson (1932) 285 U.S. 22, page 39 note 3 at page 40, 52 S.Ct. 285, 76 L.Ed. 598. In the Sultan Case, the court upholding under a state workmen’s compensation act, jurisdiction in respect to logging operations, a part of which took place in navigable waters, said: “It is settled by our decisions that, where the employment, although maritime in character, pertains to local matters, having only an incidental relation to navigation and commerce, the rights, obligations, and liabilities of the parties, as between themselves, may be regulated by local rules which do not work material prejudice to the characteristic features of the general maritime law or interfere with its uniformity.” State Industrial Board of New York v. Terry & Tench Co. (1926) 273 U.S. 639, 47 S.Ct. 90, 71 L.Ed. 817, reversing Lahti v. Terry & Tench Co. (1925) 240 N.Y. 292, 148 N.E. 527, in which the New York court held state compensation proceedings invalid, presents facts somewhat analogous to those in the instant case; there “claimant, employed in the construction of a pier, was injured while standing on a floating raft in navigable waters.” In so far as the opinion in Ketchikan Lumber & Shingle Co. v. Bishop (C.C.A.9, 1928) 24 F.(2d) 63, 64, decided before the Sultan Case, may be open to the inference that state workmen’s compensation acts are necessarily inapplicable if the services are maritime in character, it is not consistent with the principle enunciated in the Sultan Case. See, too, Morrison, Workmen’s Compensation and The Maritime Law (1929) 38 Yale L.J. 472, 497. While there is no question of tort in the instant case, appellant’s argument indicates that some significance is attached to the general rule that torts committed on navigable waters are within admiralty jurisdiction. But even though there is such jurisdiction, the local compensation act may nevertheless apply if the situation involves merely a local matter." } ]

[ { "docid": "13936941", "title": "", "text": "was securely moored to the wharf and had communication with the shore by a gangplank, did not make' her a part of the land or deprive her of the character of a water-borne vessel.” In the case of The Steamship Jefferson, 215 U. S. 130, 30 Sup. Ct. 54, 54 L. Ed. 125, 17 Ann. Cas. 907, which was a case of salvage, and where the jurisdiction of the court was challenged on the ground that at the time the services sued for were rendered the ship “was in a dry dock undergoing repairs, was not on the sea, but was virtually on the shore, and was consequently at such time not an instrumentality of navigation, subject to the dangers and hazards of the sea,” the Supreme Court said, among other things: “By necessary implication it appears from the averments of the libel' that the steamship, before being docked, had been engaged in navigation, was dedicated to the purposes of transportation and commerce, and had been placed in the dry dock to undergo repairs to fit her to continue in such navigation and commerce. As said in Cope v. Dry Dock Co., 119 U. S. 625, 627 [7 Sup. Ct. 336, 337 (30 L. Ed. 501)]: ‘A ship or vessel used for navigation and commerce, though lying at a wharf and temporarily made fast thereto, as well as her furniture and cargo, are maritime subjects, and are capable of receiving salvage service.’ In reason, we think it cannot be held that' a ship or vessel employed in navigation and commerce is any the less a -maritime subject within the admiralty jurisdiction when, for the purpose of making necessary repairs to fit her for continuance in navigation, she is placed in a dry dock and the water removed from about her, than would be such a vessel if fastened to a wharf in a dry harbor, where, by the natural recession of the water by the ebbing of the tide, she for a time might be upon dry land. Clearly, in the case last supposed, the vessel would not cease to" }, { "docid": "11971899", "title": "", "text": "40, 52 S. Ct. 285, 76 L. Ed. 598. Emphasizing these considerations, the appellee contends that it was the intent of Congress to exercise, its power to the full extent, and that, if an injury has occurred on navigable water, and the other limitations of the act are observed, it is immaterial that the employee was not engaged in maritime employment or in the execution of a maritime contract in the literal sense of these terms. We are not concerned with the power of Con-' gress to include within the scheme of a federal compensation law the kind of employment involved in this ease, unless it appears that it was the intention of Congress to cover it within the terms of the act. Congress obviously did not intend to cover all possible maritime employees, for by section 903 it expressly provided that no compensation should he payable in respect of the disability or death of a master or member of a crew of any vessel, or any person engaged in loading, unloading, or repairing a small vessel under eighteen tons net. There are other limitations in the act. Section 902(4) defines the term “employer” as an employer any of whose employees are employed in maritime employment, in whole or in part,1 upon the navigable waters of the United States. The term “employee” is not otherwise defined, but the act is obviously restricted to persons engaged in maritime employment. So it was said by the Chief Justice in Nogueira v. N. Y., N. H. & H. R. Co., 281 U. S. 128, 131, 50 S. Ct. 303, 74 L. Ed. 754: “The general scheme of the Longshoremen’s and Harbor Workers’ Compensation Act was to provide compensation to employees engaged in maritime employment, except as stated, for disability or death resulting from injury occurring upon the navigable waters of the United States where recovery through workmen’s compensation proceedings might not validly be provided by state law”; and again, in Crowell v. Benson, 285 U. S. 22, 37, 38, 52 S. Ct. 285, 287, 76 L. Ed. 598: “The act lias two limitations" }, { "docid": "2740", "title": "", "text": "T. Smith & Son, Inc. v. Taylor, 276 U.S. 179, 181, 48 S.Ct. 228, 229, 72 L.Ed. 520 (1928) (Louisiana workers’ compensation law provided the exclusive remedy because the longshoreman was killed while standing on land and not on navigable waters); Alaska Packers’ Assoc. v. Industrial Accident Comm’n, 276 U.S. 467, 468-69, 48 S.Ct. 346, 346-47, 72 L.Ed. 656 (1928) (affirming award of workers’ compensation benefits as employee’s sole remedy against employer); Sultan Ry. & Timber Co. v. Department of Labor & Indus., 277 U.S. 135, 137, 48 S.Ct. 505, 506, 72 L.Ed. 820 (1928) (rejecting constitutional attack on workers’ compensation statute requiring companies engaged in maritime activities to pay into state fund); P.J. Carlin Constr. Co. v. Heaney, 299 U.S. 41, 44, 57 S.Ct. 75, 76, 81 L.Ed. 27 (1936) (refusing to allow general maritime law claim where workers’ compensation statute applied). Though there is an apparent rift in precedent, the Supreme Court harmonized its cases on the grounds that the state workers’ compensation statutes could only apply where the maritime tort involved matters of local concern which had remote or no relation to navigation or maritime commerce. See Baizley, 281 U.S. at 230-31, 50 S.Ct. at 307-08; Perini, 459 U.S. at 306, 103 S.Ct. at 641 (tracing history of “maritime but local” doctrine). In fact, the constant theme of these Supreme Court opinions is that the uniformity of admiralty law must be preserved and that state law may be applied only where it works no “material prejudice to the essential features of the general maritime law.” Baizley, 281 U.S. at 230, 50 S.Ct. at 307. That uniformity is not to be sacrificed .to accommodate state law is a fundamental premise of admiralty jurisdiction. See Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty § 6-58 to § 6-61 (2d Ed. 1975). In one of its earliest pronouncements on the interplay between federal and state law in the maritime context, the Supreme Court stated: One thing, however, is unquestionable; the Constitution must have referred to a system of law coextensive with, and operating uniformly in, the whole" }, { "docid": "17585026", "title": "", "text": "employment pertains primarily to local matters. Cf. Morrison, Workmen’s Compensation and The Maritime Law (1929), 38 Yale L. J. 473, 497, 499. A consideration and comparison of the several decisions of the Supreme Court lead to the conclusion that while the watchman’s employment was local and incidental to “navigation and commerce” in Sunny Point Packing Co. v. Faigh (C. C. A.) 63 F.(2d) 921 (decided this day), it is not of that character in the instant ease. There, “navigation and commerce” was not involved; the fishtrap though in navigable waters was anchored and was fastened by a long cable to the shore. That was a definite, more or less permanent location. Here we are dealing with a vessel in port undergoing her usual overhauling in order that she may resume her navigation. The services of a watchman on a vessel during such overhauling cannot, in our judgment, be distinguished from the services considered in Baizlev Iron Works v. Span (1930) 281 U. S. 222, 50 S. Ct. 306, 74 L. Ed. 819; Emplovers’ Liability Assurance Corp. v. Cook (1930) 281 U. S. 233, 50 S. Ct. 308, 74 L. Ed. 823, and Great Lakes Dredge & Dock Co. v. Kierejewski (1923) 261 U. S. 479, 43 S. Ct. 418, 67 L. Ed. 756, as corrected by 266 U. S. II. In those cases it was held that state compensation acts could not apply. Hoof v. Pacific American Fisheries (C. C. A. 1922) 279 F. 367, relied upon by appellants, merely recognized the conflict in cases on the question whether or not the services of a watchman on a domestic vessel at her wharf would support a maritime lien. Without deciding that question, we there held that admiralty had jurisdiction when a tort resulted in personal injury to the watchman. That there is admiralty jurisdiction in tort does not necessarily preclude state compensation proceedings if the facts present a “local” matter. See Alaska Packers’ Ass’n v. Industrial Accident Comm., 276 U. S. 467, 469, 48 S. Ct. 346, 72 L. Ed. 656 (1928); Grant Smith-Porter Co. v. Rohde (1922) 257 U." }, { "docid": "22537747", "title": "", "text": "Dawson, 264 U. S. 219; Robins Dry Dock & Repair Co. v. Dahl, 266 U. S. 449. For decisions since the passage of the Act in question, see Messel v. Foundation Co., 274 U. S. 427; Northern Coal & Dock Co. v. Strand, 278 U. S. 142; London Guarantee & Accident Co. v. Industrial Commission, 279 U. S. 109, 125; Baizley Iron Works v. Span, 281 U. S. 222. The application of State Workmen’s Compensation Acts has been sustained where the work of the employee has been deemed to have no direct relation to navigation or commerce and the operation of the local law “ would work no material prejudice to the essential features of the general maritime law.” Western Fuel Co. v. Garcia, 257 U. S. 233, 242; Grant Smith-Porter Co. v. Rohde, 257 U. S. 469, 477; Millers’ Indemnity Underwriters v. Braud, 270 U. S. 59, 64; Sultan Railway & Timber Co. v. Department of Labor, 277 U. S. 135, 137; Baizley Iron Works v. Span, supra, at pp. 230, 231. See, also, Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109. Washington v. Dawson, 264 U. S. 219, 227, where the Court said “ Without doubt Congress has power to alter, amend or revise the maritime law by statutes of general application embodying its will and judgment. This power, we thintí, would permit enactment.of a general employers’ liability law or general provisions for compensating injured employees; but it may not be delegated to- the several States.” . The Committee on the Judiciary of the Senate, in reporting upon the proposed measure, said (Sen. Rep. No. 973, 69th Cong., 1st sess., p. 16): “ The committee deems it unnecessary to comment upon the modern change in the relation between employers-and employees establishing systems of compensation as distinguished from liability. Nearly every State in the Union has a compensation law through which employees are compensated for injuries occurring in the course of their employment without regard to negligence on the part of the employer or contributory negligence. on the part of the employee. If longshoremen could avail" }, { "docid": "11971905", "title": "", "text": "of a scaffolding, and brought suit in admiralty for tort. The locality of the injury would ordinarily have warranted such a suit, but the Oregon State Compensation Law was applicable to the situation, and it provided that the right of a workman to receive compensation under the statute for injuries should b~ in lieu of all other claims against the employer therefor. It was held that the parties had contracted with reference to this statute, and that the action in admiralty could not be maintained. This conclusion was declared to be in harmony with such cases as Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 38 S. Ct. 501, 62 L. Ed. 1171; Union Fish Co. v. Erickson, 248 U. S. 308, 39 S. Ct. 112, 63 L. Ed. 261; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 S. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145, for in each of them the employment or contract was maritime, and hence the provisions of the state compensation law could not be applied. More recently, it was held in Baizley v. Span, 281 U. S. 222, 50 S. Ct. 306, 74 L. Ed. 819, that the provision of the Workmen's Compensation Act of Pennsylvania (77 PS § 1 et seq.) could not be applied to the case of a workman engaged in making repairs to a completed vessel afloat ii~ the Delaware river. be cause the work had a direct relation to navigation and commerce, and a claim for injuries suffered in the course of such employment is controlled exclusively by the maritime law. These eases make it clear that a state has the power to provide compensation for injuries suffered by a workman employed in the construction of a vessel afloat upon navigable waters. It follows that the deputy commissioner was barred from awarding compensation in this ease by the limitation imposed by section 903(a) of the act." }, { "docid": "11971896", "title": "", "text": "injuries occurring upon the navigable waters of the United States, it deals with the maritime law, applicable to matters that fall within the admiralty and maritime jurisdiction (Const. art. 3, § 2; Nogueira v. N. Y., N. H. & H. R. Co., 281 U. S. 128, 138, 50 S. Ct. 303, 74 L. Ed. 754), and the general authority of the Congress to alter or revise the maritime law which shall prevail throughout the country is beyond dispute. * * + In amending and revising-the maritime law, the Congress cannot reach beyond the constitutional limits which are inherent in the admiralty and maritime jurisdiction. Unless the injuries to which, the act relates occur upon the navigable waters of the United States, they fall outside that jurisdiction. Not only is navigability itself a question of fact, as waters that are navigable in fact are navigable in law, but, where navigability is not in dispute, the locality of the injury, that is, whether it has occurred upon the navigable waters of the United States, determines the existence of the congressional power to create the liability prescribed by the statute.” State Legislatures first provided compensation for industrial injuries, irrespective of fault or negligence, and the attempt was made to apply the state laws to workmen engaged in maritime employment upon navigable waters; but it was held that the acts when so applied were in conflict with the provisions of article 3, § 2, and article 1, § 8, of the Federal Constitution, whereby Congress was given paramount power to fix and determine the maritime law which shall prevail throughout the country. Southern Pacific Company v. Jensen, 244 U. S. 205, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900. Thereupon Congress took notice of the gap in the applicalion of compensation laws to industrial workers in this country and successively passed two acts by which it undertook to permit the application of state workmen’s compensation laws to injuries received by employees engaged upon maritime work within the admiralty and maritime jurisdiction. See the Act of" }, { "docid": "11971895", "title": "", "text": "of the deputy commissioner be reversed, and that he proceed to award compensation to the claimants in the manner provided by the statute. Subsequently, the insurance company was granted leave to intervene, and brought the case to this court on appeal. The gist of the argument presented to sustain the decision of the District Court is that the place of the accident is the test of the jurisdiction of the Commission over claims for compensation for personal injury, just as the jurisdiction of the federal courts over maritime torts, as distinguished from their jurisdiction over matters of contract depends upon the locality of the wrong, State Industrial Commission v. Nordenholt Corp., 259 U. S. 263, 42 S. Ct. 473, 66 L. Ed. 933, 25 A. L. R. 1013; and that in each instance the power of Congress to deal with the matter rests upon the same basis. In Crowell v. Benson, 285 U. S. 22, 39, 55, 52 S. Ct. 285, 287, 76 L. Ed. 598, it was said: “As the act relates solely to injuries occurring upon the navigable waters of the United States, it deals with the maritime law, applicable to matters that fall within the admiralty and maritime jurisdiction (Const. art. 3, § 2; Nogueira v. N. Y., N. H. & H. R. Co., 281 U. S. 128, 138, 50 S. Ct. 303, 74 L. Ed. 754), and the general authority of the Congress to alter or revise the maritime law which shall prevail throughout the country is beyond dispute. * * + In amending and revising-the maritime law, the Congress cannot reach beyond the constitutional limits which are inherent in the admiralty and maritime jurisdiction. Unless the injuries to which, the act relates occur upon the navigable waters of the United States, they fall outside that jurisdiction. Not only is navigability itself a question of fact, as waters that are navigable in fact are navigable in law, but, where navigability is not in dispute, the locality of the injury, that is, whether it has occurred upon the navigable waters of the United States, determines the existence" }, { "docid": "2736", "title": "", "text": "was negligent because “[t]he rights and liabilitiés of the parties arose out of and depended upon the general maritime law and could not be enlarged or impaired by the state statute”); Northern Coal & Dock Co. v. Strand, 278 U.S. 142, 147, 49 S.Ct. 88, 90, 73 L.Ed. 232 (1928) (reversing judgment awarding \"state workers’ compensation benefits to widow of deceased stevedore because only federal maritime law may provide remedies); John Baizley Iron Works v. Span, 281 U.S. 222, 230-32, 50 S.Ct. 306, 307-08, 74 L.Ed. 819 (1930) (denying workers’ compensation benefits to ship repairman injured upon navigable waters since state law may not modify rights under admiralty law); Employers’ Liab. Assurance Corp. v. Cook, 281 U.S. 233, 236, 50 S.Ct. 308, 309, 74 L.Ed. 823 (1930) (precluding state workers’ compensation award because “State lacked power to prescribe the rights and liabilities of the parties growing out of the accident”); Nogueira v. New York, New Haven & Hartford R.R. Co., 281 U.S. 128, 138, 50 S.Ct. 303, 306, 74 L.Ed. 754 (1930) (commenting that “had the petitioner been engaged in intrastate commerce, his case still would have been within the maritime jurisdiction of the Federal courts, and he would have been denied the benefits .of the state compensation law”); Spencer Kellogg & Sons, Inc. v. Hicks, 285 U.S. 502, 513, 52 S.Ct. 450, 453, 76 L.Ed. 903 (1932) (“The workmen’s compensation law of New Jersey, the purpose of which was to supersede the common law redress in tort cases and statutory rights consequent upon death by wrongful act, and to substitute a commuted compensation for injury or death of an employee, irrespective of fault, is not applicable to the injuries and deaths under consideration.”). This line of precedent is itself supported by cases refusing to subordinate federal admiralty principles to the dictates of state law. See e.g., The Key City, 81 U.S. (14 Wall.) 653, 660, 20 L.Ed. 896 (1871) (stating that doctrine of laches, not state statutes of limita tions, apply to suits enforcing maritime liens); Workman v. City of New York, 179 U.S. 552, 560, 21 S.Ct. 212," }, { "docid": "23351428", "title": "", "text": "lying in navigable waters; the employer, Iron Works, was engaged in making repairs upon her — painting the engine room and repairing the floor; the claimant went aboard in the course of his employment and was there engaged about the master’s business when hurt. Obviously, considering what we have often said, unless the State Workmen’s Compensation Act changed or modified.the rules of the general maritime law, the rights and liabilities of both the employer and the employee in respect of the latter’s injuries were fixed by those rules and any cause arising out of them was within the admiralty jurisdiction. The insistence in behalf of appellee Span is that when hurt he was doing work of a nature which had no direct relation to navigation or commerce; and to permit application of the State Workmen’s Compensation Act would work no material prejudice to the essential features of the general maritime law as in Grant Smith-Porter Co. v. Rohde, 257 U. S. 469. But so to hold would conflict with principles which we have often announced. Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479, 480, 481; Gonsalves v. Morse Dry Dock & Repair Co., 266 U. S. 171, 172; Robins Dry Dock Co. v. Dahl, 266 U. S. 449, 457; Messel v. Foundation Co., 274 U. S. 427, 434; Northern Coal & Dock Co. v. Strand, 278 U. S. 142, 144. What work has direct relation to navigation or commerce must, of course, be determined in view of surrounding circumstances as cases arise. In Grant Smith-Porter Co. v. Rohde, supra, claimant when injured was working upon an incompleted vessel— a thing not yet placed into navigation and which had not become an instrumentality of commerce. In Millers’ Indemnity Underwriters v. Braud, 270 U. S. 59, the decedent met his death while cutting off piles driven into the land under navigable water. This had only remote relation to navigation or commerce. Sultan Ry. Co. v. Dept. of Labor, 277 U. S. 135, 136, 137, had relation to the nature of the occupation of men engaged in logging operations." }, { "docid": "17585024", "title": "", "text": "MACK, Circuit Judge. Appeal from a decree dismissing a bill to annul and enjoin enforcement of an award to Preller under the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1424, c. 509 (33 USCA §§ 901-950). On the Montebello’s arrival in port from a voyage during which Preller was employed as third officer, he was paid off. Thereafter he was re-engaged, not as an officer or sailor, but as a night watchman on the vessel and only while she was undergoing overhauling which ordinarily lasted but a few days. His duties consisted in patrolling and guarding the ship' and in seeing to it that she rested on the keel blocks. While engaged in his work on the vessel which lay in a floating dry dock in navigable waters, he was shot by one who was committing burglary on the ship. 1. Appellants’ contention that Preller when injured was a member of the crew and as such within the, exception of subdivision (1) of section 3 of the act, 44 Stat. 1426, 33 USCA § 903 (1), is without merit. Even though he was permitted to occupy the quarters which he had used while he was an officer, his employment as such had ended. When the accident occurred he was a watchman employed temporarily and only for the usual period of overhauling; in that capacity he was not a member of the vessel’s crew. 2. Appellants further urge that Preller was not within the “coverage” of the act which limits this right to cases in which a recovery “through workmen’s compensation proceedings may not validly be provided by State law.” See 44 Stat. 1426, 33 USCA § 903. The courts have experienced difficulty in drawing the line. While it is said in Sultan Ry. Co. v. Dept. of Labor (1928 ) 277 U. S. 135, 48 S. Ct. 505, 506, 72 L. Ed. 820, that state compensation acts may validly apply when “the employment, though maritime in character, pertains to local matters, having only an incidental relation to navigation and commerce,” it is not always clear whether or not maritime" }, { "docid": "11971906", "title": "", "text": "11 A. L. R. 1145, for in each of them the employment or contract was maritime, and hence the provisions of the state compensation law could not be applied. More recently, it was held in Baizley v. Span, 281 U. S. 222, 50 S. Ct. 306, 74 L. Ed. 819, that the provision of the Workmen's Compensation Act of Pennsylvania (77 PS § 1 et seq.) could not be applied to the case of a workman engaged in making repairs to a completed vessel afloat ii~ the Delaware river. be cause the work had a direct relation to navigation and commerce, and a claim for injuries suffered in the course of such employment is controlled exclusively by the maritime law. These eases make it clear that a state has the power to provide compensation for injuries suffered by a workman employed in the construction of a vessel afloat upon navigable waters. It follows that the deputy commissioner was barred from awarding compensation in this ease by the limitation imposed by section 903(a) of the act. This conclusion is in harmony with the provisions of section 902(4), which defines an employer under the act as one whose employees are employed in maritime employment; for workmen so engaged may not be provided with compensation by state law. We think it is clear that Congress used the words “maritime employment” in the same sense as they were used by the Supreme Court in the cited cases pertaining to state compensation laws, for these decisions ■were in the mind of Congress when it passed the act of 1927 in order to provide for compensation to maritime workers that the states eould not supply. South Carolina, unlike most of the states, has not seen fit to pass a workmen’s compensation act. But this circumstance is not material in the pending ease, for our decision depends upon the existence, and not upon the exercise, of the power of the state to give to its people the benefits of such legislation. No. 3411. This ease, although docketed as a separate suit, is in effect a cross-appeal by" }, { "docid": "22636962", "title": "", "text": "cleaning of the boat. He did no work while the boat was en route from dock to the vessel to be fueled.” The Court of Appeals thought it significant that his only duty relating to navigation was the incidental task of throwing the ship’s line; that his primary duty was to free the coal if it stuck in the hopper while being discharged into the fueled vessel while both boats were at rest; that he had no duties while the boat was in motion; that he was paid an hourly wage; that he had no “articles”; that he slept at home and boarded off ship'; that he was called very early in the morning each day as he was wanted; that while he had worked only three weeks, and it might have been possible that he would have been retained for years to come, his employment was somewhat akin to temporary employment. In Nogueira v. New York, N. H. & H. R. Co., 281 U. S. 128, we had occasion to consider the purpose and scope of the Longshoremen’s and Harbor Workers’ Compensation Act. Its general scheme was to provide compensation to employees engaged in maritime employment, except as stated, for disability or death resulting from injury occurring upon the navigable waters of the United States where recovery through workmen’s compensation proceedings might not validly be provided by state law. We had held that one engaged as a stevedore in loading a ship lying in port in navigable waters was performing a maritime' service and that the rights and liabilities of the parties were matters within the admiralty jurisdiction. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52. But the Court had also held that in the case of a longshoreman who was injured on the land, although engaged in unloading a vessel, the local law governed and hence the workmen’s compensation law of the State applied. State Industrial Commission v. Nordenholt Corporation, 259 U. S. 263. The distinction had thus been maintained between injuries on land and those suffered by persons engaged in maritime employment on a vessel in" }, { "docid": "5599089", "title": "", "text": "the waters of the United States. When the vessel left the dry dock, and the libelant sought to collect its stated amount for dry dockage and incidental services, the claimants refused to pay a balance of $4,788, to enforce which demand the libel was brought, and sustained by the - court b'elow. The claimants Have brought the case here by appeal, contending,, first; that the court below was without jurisdiction; second, that the libelant is-without power to charge vessels for dry dockage; third, th,at the charges made by the libelant, if legally made, are unreasonable; and, fourth, that the service rendered did not give the libelant any. lien. Portland being the home port of the vessel, it is conceded that no lien exists under the general maritime law for the service rendered, by the libelant; but if by the statute of the state a lien was given, then it’does not admit of question that it was a maritime lien, enforceable in admiralty in the courts of the United States. The J. E. Rumbell, 148 U. S. 1, 11, 13 Sup. Ct. 498, 37 L. Ed. 345; The Glide, 167 U. S. 606, 624, 17 Sup. Ct. 930, 42 L. Ed. 296; The Robert W. Parsons, 191 U. S. 17, 24 Sup. Ct. 8, 48 L. Ed. 73. It is insisted, however, on behalf of the appellants, that at the time the repairs were made and the services rendered “the alleged ship was not engaged in commerce or navigation — it was dead,” says appellants’ proctor, and should be considered as one that never had been so engaged. We do not think so. ' The'fact that the vessel while on one of her voyages was so badly damaged as to make it impossible to raise her for nearly a year and-a half does not alter the fact that she was engaged in commerce and navigation when her.injury occurred, and while the record shows that the damage was very serious, resulting in bending her keel and breaking it in three places, and in breaking and bending her keel plates, and' in other" }, { "docid": "17585025", "title": "", "text": "903 (1), is without merit. Even though he was permitted to occupy the quarters which he had used while he was an officer, his employment as such had ended. When the accident occurred he was a watchman employed temporarily and only for the usual period of overhauling; in that capacity he was not a member of the vessel’s crew. 2. Appellants further urge that Preller was not within the “coverage” of the act which limits this right to cases in which a recovery “through workmen’s compensation proceedings may not validly be provided by State law.” See 44 Stat. 1426, 33 USCA § 903. The courts have experienced difficulty in drawing the line. While it is said in Sultan Ry. Co. v. Dept. of Labor (1928 ) 277 U. S. 135, 48 S. Ct. 505, 506, 72 L. Ed. 820, that state compensation acts may validly apply when “the employment, though maritime in character, pertains to local matters, having only an incidental relation to navigation and commerce,” it is not always clear whether or not maritime employment pertains primarily to local matters. Cf. Morrison, Workmen’s Compensation and The Maritime Law (1929), 38 Yale L. J. 473, 497, 499. A consideration and comparison of the several decisions of the Supreme Court lead to the conclusion that while the watchman’s employment was local and incidental to “navigation and commerce” in Sunny Point Packing Co. v. Faigh (C. C. A.) 63 F.(2d) 921 (decided this day), it is not of that character in the instant ease. There, “navigation and commerce” was not involved; the fishtrap though in navigable waters was anchored and was fastened by a long cable to the shore. That was a definite, more or less permanent location. Here we are dealing with a vessel in port undergoing her usual overhauling in order that she may resume her navigation. The services of a watchman on a vessel during such overhauling cannot, in our judgment, be distinguished from the services considered in Baizlev Iron Works v. Span (1930) 281 U. S. 222, 50 S. Ct. 306, 74 L. Ed. 819; Emplovers’ Liability Assurance" }, { "docid": "11971904", "title": "", "text": "Jensen, 244 U. S. 205, 215, 216, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900. We come then to the nature of the injured man's employment in this case, and to determine whether it lay within the scope of permissible state compensation legislation. He was engaged upon navigable waters in the completion of a new ship launched but not quite finished or placed in navigation as an instrumentality of commerce. Such work is not maritime in the accepted meaning of that term. In Grant Smith-Porter Co. v. Rohde, 257 U. S. 469, 42 S. Ct. 157, 66 L. Ed. 321, 25 A. L. R. 1008, it was held that a carpenter at work upon the construction of a vessel lying at a dock in the Willamette river, substantially completed but not ready for delivery, was not engaged in an activity which had any direct, relation to navigation or commerce. He claimed that he was injured through the negligence of his employer in the construction and maintenance of a scaffolding, and brought suit in admiralty for tort. The locality of the injury would ordinarily have warranted such a suit, but the Oregon State Compensation Law was applicable to the situation, and it provided that the right of a workman to receive compensation under the statute for injuries should b~ in lieu of all other claims against the employer therefor. It was held that the parties had contracted with reference to this statute, and that the action in admiralty could not be maintained. This conclusion was declared to be in harmony with such cases as Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 38 S. Ct. 501, 62 L. Ed. 1171; Union Fish Co. v. Erickson, 248 U. S. 308, 39 S. Ct. 112, 63 L. Ed. 261; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 S. Ct. 438, 64 L. Ed. 834," }, { "docid": "11971900", "title": "", "text": "small vessel under eighteen tons net. There are other limitations in the act. Section 902(4) defines the term “employer” as an employer any of whose employees are employed in maritime employment, in whole or in part,1 upon the navigable waters of the United States. The term “employee” is not otherwise defined, but the act is obviously restricted to persons engaged in maritime employment. So it was said by the Chief Justice in Nogueira v. N. Y., N. H. & H. R. Co., 281 U. S. 128, 131, 50 S. Ct. 303, 74 L. Ed. 754: “The general scheme of the Longshoremen’s and Harbor Workers’ Compensation Act was to provide compensation to employees engaged in maritime employment, except as stated, for disability or death resulting from injury occurring upon the navigable waters of the United States where recovery through workmen’s compensation proceedings might not validly be provided by state law”; and again, in Crowell v. Benson, 285 U. S. 22, 37, 38, 52 S. Ct. 285, 287, 76 L. Ed. 598: “The act lias two limitations that are fundamental. It deals exclusively with compensation in respect of disability or death resulting ‘from an injury occurring upon the navigable waters of the United States’ if recovery ‘through workmen’s compensation proceedings may not validly be provided by State law,’ and it applies only when the relation of, master and servant exists.” Section 903(a) of the act provides: “Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by Sts~te law.\" We are par-. ticularly concerned here with so much of this limitation as restricts recovery to those instances where recovery through workmen's compensation proceedings may not validly be provided by state law. The significance of this phrase was brought out in Crowell v. Benson, 285 U.S. 39, 52 S. Ct. 285, 287, 76 L. Ed. 598," }, { "docid": "12639172", "title": "", "text": "80 N.E.2d at 481. The Supreme Court of the United States affirmed the decision of the Massachusetts high court in a per cu-riam decision citing Davis. Bethlehem Steel Co. v. Moore, 335 U.S. 874, 69 S.Ct. 239, 93 L.Ed. 417 (1948). This affirmance is noteworthy because prior Supreme Court decisions had classified this type of work as falling outside of the maritime but local exception. See Baizley Iron Works v. Span, 281 U.S. 222, 50 S.Ct. 306, 74 L.Ed. 819 (1930); Robins Dry Dock & Repair Co. v. Dahl, 266 U.S. 449, 457, 45 S.Ct. 157, 158, 69 L.Ed. 372 (1925). Thereafter, the Supreme Court reversed a California Supreme Court ruling overturning a state award to a shipyard worker injured while repairing a vessel. Baskin v. Industrial Acc. Comm’n, 338 U.S. 854, 70 S.Ct. 99, 94 L.Ed. 523 (1949). The Court remanded, suggesting that the California Supreme Court might wish to consider Moore’s Case. After the California Supreme Court reversed its earlier determination and awarded compensation, the Supreme Court affirmed. Kaiser Co. v. Baskin, 340 U.S. 886, 71 S.Ct. 208, 95 L.Ed. 643 (1950). Like the repair of a completed ship in navigable waters, the loading and unloading of a vessel was not a task falling within the maritime but local exception. Employer’s Liability Assur. Corp. v. Cook, 281 U.S. 233, 236, 50 S.Ct. 308, 309, 74 L.Ed. 823 (1930). Prior to Davis, a state compensation award to a worker injured while engaged in this task on the navigable waters would have been impermissible. But as the Moore and Baskin decisions indicate, Davis supplanted the rigid, and arbitrary, lines that previously existed with a presumption of constitutionality that resolved close cases in favor of injured workers. In Hahn v. Ross Island Sand & Gravel, 358 U.S. 272, 79 S.Ct. 266, 3 L.Ed.2d 292 (1959), a per curiam decision, the Supreme Court advanced the Davis principle even further. Hahn involved a petitioner who had been injured while working on a barge in a lagoon opening into navigable waters. He brought suit under a section of the Oregon workmen’s compensation statute against" }, { "docid": "14728152", "title": "", "text": "statutes. Rounsaville v. Central R. R. Co., supra; Foley v. Home Rubber Co., 89 N. J. Law, 474, 99 A. 624; Deeny v. Wright & Cobb Lighterage Co.,, supra. It is also argued that, since the disaster happened on navigable waters, the Workmen’s Compensation Act is excluded by admiralty law, by reason of what was decided in Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900. In the Jensen Case the employment was a maritime one. Under such conditions, the New Jersey act has no operation. March v. Vulcan Iron Works, 102 N. J. Law, 337, 132 A. 89. Here, however, the employment (except as to men engaged in navigating the launch, and as to men whose work it was to unload ships) was nonmaritime. The decisions of the Supreme Court subsequent to the Jensen Case show that the local compensation statutes are not excluded, unless the tort occurred on navigable waters, and unless also the employment was maritime. Grant Smith-Porter Co. v. Rohde, 257 U. S. 469, 42 S. Ct. 157, 66 L. Ed. 321, 25 A. L. R. 1008; Millers’ Underwriters v. Braud, 270 U. S. 59, 46 S. Ct. 194, 70 L. Ed. 470; Alaska Packers’ Ass’n v. Industrial Accident Commission, 276 U. S. 467, 48 S. Ct. 346, 72 L. Ed. 656. Finally, it is pointed out by the claimants that the employees were being transported from New York to New Jersey; that interstate commerce is involved; and the argument is that the New Jersey statute is for that reason rendered inoperative. There is no merit in this argument. Of course, where employees of common carriers by railroad are injured or killed while engaged in interstate commerce, Congress has covered the entire field by the enactment of the Federal Employers’ Liability Act (45 USCA § 51-59), and state workmen’s compensation statutes are excluded. New York Central R. Co-v. Winfield, 244 U. S. 147, 37 S. Ct. 546, 61 L. Ed. 1045, L. R. A. 1918C, 439, Ann. Cas. 1917D," }, { "docid": "17585027", "title": "", "text": "Corp. v. Cook (1930) 281 U. S. 233, 50 S. Ct. 308, 74 L. Ed. 823, and Great Lakes Dredge & Dock Co. v. Kierejewski (1923) 261 U. S. 479, 43 S. Ct. 418, 67 L. Ed. 756, as corrected by 266 U. S. II. In those cases it was held that state compensation acts could not apply. Hoof v. Pacific American Fisheries (C. C. A. 1922) 279 F. 367, relied upon by appellants, merely recognized the conflict in cases on the question whether or not the services of a watchman on a domestic vessel at her wharf would support a maritime lien. Without deciding that question, we there held that admiralty had jurisdiction when a tort resulted in personal injury to the watchman. That there is admiralty jurisdiction in tort does not necessarily preclude state compensation proceedings if the facts present a “local” matter. See Alaska Packers’ Ass’n v. Industrial Accident Comm., 276 U. S. 467, 469, 48 S. Ct. 346, 72 L. Ed. 656 (1928); Grant Smith-Porter Co. v. Rohde (1922) 257 U. S. 469, 477, 478, 42 S. Ct. 157, 66 L. Ed. 321., 25 A. L. R. 1008. Under the Supreme Court decisions, however, the instant ease does not present such a situation. Decree affirmed." } ]

[ { "docid": "21349115", "title": "", "text": "employ of the plaintiff company in 1926 to organize the defendant, Denominational Envelope Company, and has since been its president, directing its course in direct competition with the plaintiff in the business of printing church envelopes. The defendant, Shomaker, is the coinventor of both of the patents in suit. For six years he was an expert mechanic and machine designer of the plaintiff, working out intricate mechanical problems and joining with the president of the plaintiff company in inventing and assigning to 1he plaintiff the caterpillar machine, the subject-matter of patent No. 1,855,132, and the dating and numbering device, the subject of patent No. 1,792,642, presently to be discussed. When he left the employ of the plaintiff, he was engaged by Denominational Envelope Company and constructed the caterpillar machine and the dating and numbering cylinders used by it at the time that the present suit was instituted. All of these machines were built for Denominational Envelope Company in the shops of the Union Envelope Company, which was paid for the privilege. At that time Isaac Rheutan, the father of Donald, was secretary and treasurer of Union Envelope Company and the majority stockholder of Denominational Envelope Company. Union Envelope Company is the manufacturer of the kind of envelopes which Denominational Envelope Company prints and sells in large quantities to churches. The plaintiff contends that the necessary inference from these facts is that Isaac Rheutan conspired with his son Donald to employ Shomaker to reproduce the devices which he had designed and patented for the plaintiff; and that as part of the unlawful conspiracy, Isaac Rheutan, a responsible officer of the Union Envelope Company, arranged for the manufacture of the infringing machines in its shops. Thereby it is said that the Union Envelope Company was charged with knowledge of the conspiracy, and having permitted'its shop to be used for the manufacture of the infringing machines, is itself guilty of infringement. There seems to be no testimony to indicate that the Denominational Envelope Company bought its envelopes from the Union Envelope Company; but even if such were the case, infringement could not be" } ]

[ { "docid": "11950006", "title": "", "text": "the suction upon the operation of said throw-off mechanism to prevent further operation of said article feeding means upon continued rotation of said shaft.” The defendants point out correctly that the controversy centers around the valve mechanism. The suction feed mechanism, the first element of the plaintiff’s device above described, was not new. It was shown in a number of prior patents including those upon which the defendants chiefly rely, the patent to Johnson No. 810,152 of 1904, and the patent to Huckins No. 1,118,-009 of 1914 hereinafter discussed. Moreover, the Harris press itself was equipped with a throw-off mechanism whereby the printing and impression cylinders of the press were separated and the motive power was disconnected, in case an envelope was not presented to the feed rolls. The claim to invention rests in the combination of these elements through the valve mechanism which controls the suction to the feed device during the printing operation, and which corelates the suction feed with the throw-off mechanism so as to ‘interrupt the feed when the printing is stopped. It is contended, first, in defense of the suit that the claims of the patent in suit are invalid because they are all based on combinations which are old in either the Johnson or Huckins patent, and if any novelty exists in the disclosure, it resides in the specific construction of the valve mounted on the shaft that controls the suction block. Hence it is said that even if this form of valve were itself patentable, an old combination including the valve was not patentable just as in McGrath Holding Corp. v. Anzell (C.C.A.) 58 F.(2d) 205, it was held that a new form of clamp did not justify the inventor in claiming an old combination consisting of an automobile rear view mirror, the hinge of an automobile door and a clamp for attaching the mirror to the hinge, since the parts co-a'cted in the same way as the corresponding parts of old combinations and the sole novelty was in the form of the clamp. See, also, Langan v. Warren Axe & Tool Co." }, { "docid": "21349124", "title": "", "text": "the patent in suit, the main shaft is a hollow-cylinder and the dating and numbering shafts are placed coaxially within it. The other plain departure from the Pritchard patent consists in means to prevent excess movement of the printing mechanism, consisting of a simple device which it is not necessary to describe in detail. The master held that although these changes resulted in some advantage and added convenience, they were merely mechanical devices which did not rise to the dignity of an invention, and this conclusion the plaintiff does not attempt to refute in its brief or argument in this court. The only argument advanced by the plaintiff as to claims 2, 7, and 9 is that the defendant Shomaker is estopped by his assignment of the patent to the plaintiff to deny its validity; and that the other defendants, Denominational Envelope Company and Union Envelope Company are subject to the same estoppel through their association and privity with Shomaker. The rule is well settled that the assignor of a patent is estopped to contest its validity against the \"assignee. Frick Co. v. Lind say (C.C.A.) 27 F.(2d) 59, 61. In the same case it was held that the partner of the assignor, engaged with him in carrying on the business alleged to infringe the patent in suit, was doing business in such association and privity with the assignor as to be subject to the same estoppel which bound him. Relying on the principles enunciated in this case, the plaintiff contends that not only was Shomaker estopped to contest the validity of the patent, but that the Denominational Envelope Company, which employed him to make the infringing machines after he had left the plaintiff’s employ, and the Union Envelope Company, which put its plant at the infringers’ disposal, were bound by the same estoppel. This contention is not without force, but it was not raised by the plaintiff in the trial court, and it is therefore too late to raise it for the first time in this appeal. With reference to a similar situation, the following is said in Riverside" }, { "docid": "11950003", "title": "", "text": "his report: “It is not disputed that the Jones and Nielson suction feed renders possible a more rapid operation with fewer operatives; that the feed in operation is accurate, and certain, and in complete synchronism with the press; that it renders possible printing on either side of the envelope with the use of the same feed mechanism, and that feeding is stopped contemporaneously with the operation of the throw-off. That they were useful and practical improvements is demonstrated by their adoption, in modified form, by defendants.” - The purpose and intent of the founders of the Denominational Envelope Company, as shown by the evidchce, is likewise indisputable. It is manifest that they were fully acquainted with the successful application and use of the invention in the plaintiff’s plant, and desired to avail themselves of the same advantages in competition with the owner of the -patent without recognition of its monopoly; and for this purpose, the new company was not only directed and managed by former employees of the plaintiff, but Nielson, one of the inventors, was employed to devise a mechanism which would accomplish the same result without infringement. The pivotal question in the case is whether his efforts were successful. The claims of the patent in suit upon which the plaintiff relies are as follows: “7. In a mechanism of the class described, the combination with a movable member for successively withdrawing articles from a stack, and a rotating shaft for operating said member, of valve means mounted on said shaft for controlling a suction in said member.” “8. In a mechanism of the class described, the combination with a movable member for successively withdrawing articles from a stack, and a rotating shaft for operating said member, of a valve comprising relatively movable members mounted on said shaft for controlling a suction in the withdrawing member.” “9. In a mechanism of the class described, the combination with a movable member for successively withdrawing articles from a stack, and a rotating shaft for operating said member, of a valve comprising relatively movable members mounted on said shaft, the said valve" }, { "docid": "11950023", "title": "", "text": "a party may rest upon his rights, without being guilty of laches, varies with the circumstances of each case, and in order to constitute the defense, the lapse of time must be so great and the relations of the defendants to the rights claimed must be such that it would be inequitable to permit the plaintiff to assert them. Halstead v. Grinnan, 152 U.S. 412, 416, 14 S.Ct. 641, 38 L.Ed. 495. There is no evidence from which we may conclude that the defendants could not have secured Nielson as a witness if they had wished to do so, or that they have been prejudiced by the prosecution of the suit at this time. A motion was made in the District Court to dismiss the case as to the individual defendants, and it was granted as to Isaac L. Rheutan, Richard D. Rheutan, and Stevens Hughes, from which action no appeal was taken by the plaintiff. The defendants claim it should also have been granted as to Donald E. Rheutan and Wesley P. Shomaker on the ground that they were acting merely as agents of the Denominational Envelope Company and not as independent individuals. Donald E. Rheutan, as we have Seen, took an active part in the organization of the Denominational Envelope Company and has been its president and the active manager of its affairs. He engaged Nielson to install the infringing structures upon the corporation’s machines. In April or May, 1931, he also engaged the defendant Shomaker, an expert mechanic formerly in charge of the machine shop of the plaintiff, to construct the caterpillar machines which are involved in the companion case No. 3851 [Duplex Envelope Co. v. Denominational Envelope Co. et al. (C.C.A.) 80 F.(2d) 179]. It is obvious that both Donald E. Rheutan and Shomaker were active in the affairs of the latter company and thoroughly conversant with the character of its operations, and of the acts which have been held herein to constitute deliberate infringement of the patent in suit. Under these circumstances, the decision of the master to hold not only the corporation but the" }, { "docid": "11950001", "title": "", "text": "arm, raises and lowers it. This movement brings the port in the movable member into registry with the fixed ports of the stationary members, when the suction block comes into contact with the stack of envelopes; it cuts off the suction but maintains a vacuum during the descent of the block, and finally' releases the suction at the feed table when the recess in the movable member registers with the fixed port in the stationary member on one side. The valve assembly also includes a cut-off plate which is interposed between the movable member and the fixed plate on one side, and this cut-off plate, upon the operation of the press throw-off, is drawn laterally to the right to close the port and interrupt suction. ’ It will be seen from these descriptions that in both structures the operation of the valve is controlled by the shaft which operates the suction block; also that there are two fixed plates carrying fixed ports and an intermediate movable member adapted to establish and release suction in a timed relation with the movement of the suction block. The device for releasing the suction is identical, and the suction cut-off device in the defendant’s structure is a full equivalent of the same element in the plaintiff’s machine. The differences are found in the location of the valve assembly and particularly of the movable member ■thereof and in the character of its movement. The function of both devices is identical; and the close association in both between the operating shaft and the valve controlling the suction block makes possible in both the high speed of operation and the elimination of defects which were achieved for the first time by the invention disclosed in the patent in suit- The evidence shows that when this mechanism is added to the Harris press, it permits the press to be speeded up 20 per cent, printing 24,600 envelopes per hour instead of a maximum of 21,000 per hour; and the evidence fully sustains the following summary of the benefits flowing from the invention made by the special master in" }, { "docid": "11950000", "title": "", "text": "defendants’ structure, the valve consists of two fixed plates bolted together and provided with ports extended entirely through them. One of these plates is a triangular casting bolted at its apex to the frame of the press. Through this casting and to the left of the valve assembly passes the operating shaft. Keyed on this shaft is a cam in which is cut an interior groove in which rides a cam roller. This roller is rigidly attached on the smaller end of an arm or lever shaped somewhat like a dog bone which constitutes the movable member of the valve assembly. The larger or expanded portion of the movable member operates between the two stationary members. It contains a port and also a recess vented to atmosphere. The timing of the valve in relation to the sucker block is similar to that described in connection with the plaintiff’s valve. As the operating shaft revolves, the cam revolving with it forces the cam roller around the groove and the roller, carrying with it the attached movable arm, raises and lowers it. This movement brings the port in the movable member into registry with the fixed ports of the stationary members, when the suction block comes into contact with the stack of envelopes; it cuts off the suction but maintains a vacuum during the descent of the block, and finally' releases the suction at the feed table when the recess in the movable member registers with the fixed port in the stationary member on one side. The valve assembly also includes a cut-off plate which is interposed between the movable member and the fixed plate on one side, and this cut-off plate, upon the operation of the press throw-off, is drawn laterally to the right to close the port and interrupt suction. ’ It will be seen from these descriptions that in both structures the operation of the valve is controlled by the shaft which operates the suction block; also that there are two fixed plates carrying fixed ports and an intermediate movable member adapted to establish and release suction in a" }, { "docid": "11950008", "title": "", "text": "(C.C.A.) 184 F. 720. The Johnson patent disclosed a metal sheet feeding mechanism consisting of a rocker arm carrying a suction block connected with a flexible suction tube and adapted to be reciprocated to and from a stack of blanks by means of a rod connected at one end to the rocker arm of the feed device and at the other end to a cam disc rotatably mounted on the drive shaft. The suction line was equipped with a valve member which was operably connected with the cam disc through the medium of another rocker arm, and was thereby opened and shut in timed relation with the reciprocation of the sucker block. It is said that this patent shows the combination called for by claims 7, 8, and 9 of the patent in suit, that is, a movable member for successively drawing articles from the stack, a rotating shaft for operating that member and valve means for controlling the suction in that member. It is noticeable, however, that in the Johnson patent the valve is quite remote from the operating shaft. It is not mounted thereon or closely associated therewith, as in the case of the patent in suit and of the machines maintained by the parties to this suit. The cam of the Johnson patent is open and the rocker arm connecting with the valve would be incapable of operation at the high speeds which the envelope printing machines attain. Hence it is clear that the patented device differs from the Johnson patent, not only in the specific construction of the valve, but also in the fact that the valve in the patent corelates the feeding mechanism with the shaft in such a manner as to affect the nature of the whole operation. The result is not merely the substitution of one kind of valve for another, but the linking together of the feed means on the shaft in a combination more intimate and efficient. It is well established that patentability may reside in a combination of old elements to produce new results, and a fortiori, this may be" }, { "docid": "21349110", "title": "", "text": "which would be adjusted to exactly accommodate that number. In the first magazine would be placed envelopes, previously printed on the plain sides with the message designed for the first Sunday in January, in the next adjacent magazine the message envelopes for the second Sunday, etc. “As the ‘caterpillar’ is continuously moved around its orbit, the envelopes are successively removed from the bottoms of the magazine by a suetjon-feed device similar to that described in the Jones and Nielson patent, transferred to the feeding mechanism by which they are carried into the press, which prints the flapside of the envelope, numbers fifty-two envelopes with the same serial number, and dates the series with the successive dates of the Sundays throtxghout the year. Upon completion of this cycle, the serial number is automatically changed and the process is repeated. In this manner the envelopes are turned out in complete sets, the message for each date being the same on all envelopes of that date. “The suction-block, valve, press-throw-off, suction-cut-off, and a portion of the feed mechanism in the caterpillar machine are the same as that used in the Juries and Nielson ‘single machine’ but the fact that in the caterpillar machine the envelope must be removed by the sucker-block from a moving hopper rather than the stationai'y hopper found in the single machine, requires that instead of moving only in a more or less vertical plane as in the single machine, the suction-block in the caterpillar machine, at the time of contact with the envelopes should itself be moving in approximately the same direction as the magazines and at the same speed; otherwise, the envelope would not be withdrawn cleanly with a straight downward pulL” The mechanism whereby the required combination of the vertical and horizontal movement of the suction block is secured is so arranged that “as the suction-block approaches its contact point with the envelopes in the moving magazines, it is rising and at the same time traveling in the same direction with the magazines; at the moment of contact its movement is practically coincident with that of the" }, { "docid": "11950013", "title": "", "text": "valve closed when it reaches a closed position. Thus the suction is cut off by stopping the motion of the valve until the feeding difficulty is corrected. This arrangement is not like the cut-off .plate of the patent in suit which cuts off the suction without interference with the valve movements. The defendants also point out that the only claims of the patent which specify a movable member for successively drawing articles from a stack, are claims 7, 8, and 9, and that this construction is shown by the Johnson patent with the exception that the valve in that patent is not mounted on the shaft. The Johnson suction block completely removed the articles from the stack. Thus it appears that, broadly speaking, the Iiuckins patent includes a suction nozzle, a suction valve controlled by the same shaft which controls the nozzle, a throw-off mechanism operable • when the feed mechanism fails, and a suction cut-off operable when the throw-off occurs, and that these same elements are found in the patent in suit. But it is clear from the aforegoing description that the elements in the latter structure, particularly the valve itself, differ in construction and mode of operation from the elements in the former. Hence claims 10 and 11 of the patent are not invalidated merely as containing old combinations, unaccompanied by new results, for as pointed out above in the discussion of claims 7, 8, and 9, with reference to the Johnson patent, we have here not merely the substitution of a new element in an old combination performing precisely the same functions as the corresponding element in the old combination, but a substitution of an element which changes the nature of the operation and actually accomplishes a new result. The defense of noninfringement is based on the differences between the structure of the defendants and that shown in the patent in suit with respect to the location of the valve and the character of its movement; and it is said that, notwithstanding the similarity of the devices in all other respects, and the identity of results, infringement" }, { "docid": "11657893", "title": "", "text": "location, without change of mode and principle of operation and result, will not avoid infringement. In the Barber patent the exhaust valve is mechanically operated by mechanism which it is not necessary to remove from its support, to the end that the valve cage and valve may be removed and replaced. In the defendant’s structure the same or equivalent mechanism is employed in connection with the inlet valve, and this mechanism includes a rock arm engaging the valve stem and a push rod for rocking the arm. The valve cage and valve are removable from the seat in the cylinder casting without removing from its support the rock arm which engages the valve stem to operate the valve. I do not see that infringement can be avoided by applying the invention of Barber, so far as removal from the seat, etc., is concerned, to the inlet valve, and making thé outlet valve after the principle adopted by Barber as to the inlet valve. The point of the\" invention in this respect is to make these valves removable without dismantling the machine. Ordinarily it is as essential to remove the one as it is to remove die other. It is true that claim 9 refers to an exhaust valve, but the defendant has appropriated that identical combination and has secured all its advantages and benefits in. its inlet valve structure. On the trial defendant’s expert pointed out certain claimed advantages secured by the defendant’s construction. This is immaterial, so long as the defendant uses the complainant’s combination or equivalents tfierefor. Added advantages in some cases may show patentable improvement over the infringed structure or combination; but these advantages, when they exist, even if patentable, do not justify the use of the prior patented combination. When a device has the same elements performing the same functions in substantially the same way as a prior patented device, it is immaterial that the alleged infringing device performs some other function. I think it clear, as before stated, that the defendant has used and is using a structure which has all the elements of the" }, { "docid": "11949991", "title": "", "text": "SOPER, Circuit Judge. The Jones and Nielson patent, No. 1,-403,250, of January 10, 1922, covering a mechanism for feeding articles of paper or envelopes to a rotary printing press of standard construction is the subject-matter of this suit. It was issued to Duplex Envelope Company, assignee of the inventors, by which suit was instituted in the District Court against Denominational Envelope Company, Union Envelope Company, Wesley P. Shomaker, Stevens Hughes, Donald E. Rheutan, Richard D. Rheutan, and Isaac Rheutan, charging infringement of the patent and praying for an accounting and payment of profits and damages, and for an injunction from further iniVingcmcnt. The defendants attacked the validity of the patent, denied ixifringement and set up other defenses which will be hereafter noted. The case was referred to a special master, who, in an able and painstaking report, sustained the validity of the claims of the patent sued on, and found infringement by the Denominational Envelope Company, the Union Envelope Company, Donald E. Rheutan, and Wesley P. Shomaker. The District Judge approved the report of the special master in all respects and signed an interlocxxtory decree referring the case again to the special master to determine the amount of profits and losses; from which decree, this appeal was taken. The nature of the invention and its ap- • plication to the facts of this case become clear when the events are outlined which led to the discovery. The Duplex Envelope Company, for nearly twenty years before the patent was issued, had been engaged in printing church subscription envelopes ; and for five years, had been using presses developed by the Harris Press Company which were equipped with mechanical feed devices shown by the earlier patents No. 577,405 of 1897 and No. 661,245 of 1900 to Harris and McNutt. These devices it was the purpose of the patentees in suit to improve. In the operation of the Harris press, the envelopes were piled flaps down in hoppers in front of the feed rolls. A reciprocating feeder with projecting blades approached the stack of envelopes, so that the blades engaged the flap of" }, { "docid": "21349107", "title": "", "text": "SOPER, Circuit Judge. This suit in equity was brought for infringement of letters patent to Jones and Shomaker, No. 1,855,132 and No. 1,792,642, issued to the plaintiff in the District Court as assignee on April 19, 1932, and February 17, 1931, respectively. The patents relate to automatic devices to be used in the printing of church envelopes, the patent first mentioned disclosing a device for feeding the envelopes in series to a printing press, and the second disclosing devices for printing numbers and dates on the envelopes of each set to distinguish them from the envelopes of all other sets. These devices are designed to be used on printing presses of the sort described in the opinion of this court in the companion case [Denominational Envelope Co. et al. v. Duplex Envelope Co., Inc. (C.C.A.) 80 F.(2d) 186], filed this day. Duplex Envelope Company, for more than thirty years past, has been engaged in the business of printing church collection envelopes. Formerly the envelopes were printed on the flap side only, but the president of the company conceived the idea of.using the other side to carry a pastoral or seasonal message and put the idea in effect commercially in 1927. The envelopes were first printed on Harris presses equipped with the Jones and Nielson suction feed, described in the companion case [Denominational Envelope Co. et al. v. Duplex Envelope Co., Inc. (C.C.A.) 80 F.(2d) 186], which were referred to in the pending case as the “single machines.” In the present commercial practice, the envelopes are printed in series, one for each Sunday or special occasion in the year. All in a series carry the same'serial number, but each a different date and message. At first no effort was made to place the same message on the envelopes of all contributors on the same date, but a demand for uniformity arose'and the problem of mechanical eolation led to patent No. 1,855,-132 now under discussion. The patent comprises a series of magazines for holding the envelopes, carried on two endless chains, to which the magazines are removably attached. The machines are carried" }, { "docid": "11949993", "title": "", "text": "the lowest envelope and pushed it forward until it was engaged by the feed rolls. The device was practicable bxit not without defects. The blades were apt to puncture the paper when operated at high speeds. If the envelope was warped, the blades sometimes failed to engage the flaps. Only 250 envelopes could be placed in a pile, for excess pressure interfered with the removal of the envelopes from the stack. Hence the constant attendance of a feeding operator was required. Another disadvaxitage was that it could be utilized only when the printing was to be done on the back of the envelopes, and if printing on the flap was also desired, the substitution of a. different device was necessary, and the change from one to the other was consumptive of time and uneconomical. Still another defect was the wastage of stock resulting from the continued operation of the feed mechanism so long as the press cylinders continued to revolve through their own momentum after the impression cylinder was separated from the printing cylinder and the motive power was shut off. Three to ten revolutions would then ensue, during which the envelopes fed to the press were wasted; and this occurred the more frequently because the machinery was automatically stopped whenever the blades failed to function properly, as above described. These disadvantages were overcome through the development of the device covered by the patent in suit. The work was done by Archer G. Jones, founder of the plaintiff company, and Albert W. Nielson, who came to Richmond in 1917 to become its plant superintendent, leaving his former employment with the Harris Press Company for this purpose. The improvements which they made upon the Harris press are described in the patent in suit substantially as follows: There are three closely related parts of the feeding mechanism: (1) The suction feed means; (2) the valve mechanism whereby suction is applied to and released from the feed block; and (3) the means whereby feeding is stopped upon the operation of a throw-off mechanism. The suction feed means consist of a so-called sucker block" }, { "docid": "11950024", "title": "", "text": "the ground that they were acting merely as agents of the Denominational Envelope Company and not as independent individuals. Donald E. Rheutan, as we have Seen, took an active part in the organization of the Denominational Envelope Company and has been its president and the active manager of its affairs. He engaged Nielson to install the infringing structures upon the corporation’s machines. In April or May, 1931, he also engaged the defendant Shomaker, an expert mechanic formerly in charge of the machine shop of the plaintiff, to construct the caterpillar machines which are involved in the companion case No. 3851 [Duplex Envelope Co. v. Denominational Envelope Co. et al. (C.C.A.) 80 F.(2d) 179]. It is obvious that both Donald E. Rheutan and Shomaker were active in the affairs of the latter company and thoroughly conversant with the character of its operations, and of the acts which have been held herein to constitute deliberate infringement of the patent in suit. Under these circumstances, the decision of the master to hold not only the corporation but the individual parties named was justified by the decided cases. See Greene v. Buckley (C.C.) 120 F. 955; Panzl v. Battle Island Paper & Pulp Co. (D.C.) 132 F. 607; Hitchcock v. American Plate Glass Co. (C.C.A.) 259 F. 948; Ruggles-Coles Eng. Co. v. McGann Eng. Co. (D.C.) 34 F.(2d) 519, affirmed (C.C.A.) 41 F.(2d) 1005. The decree of the District Court is affirmed." }, { "docid": "11950002", "title": "", "text": "timed relation with the movement of the suction block. The device for releasing the suction is identical, and the suction cut-off device in the defendant’s structure is a full equivalent of the same element in the plaintiff’s machine. The differences are found in the location of the valve assembly and particularly of the movable member ■thereof and in the character of its movement. The function of both devices is identical; and the close association in both between the operating shaft and the valve controlling the suction block makes possible in both the high speed of operation and the elimination of defects which were achieved for the first time by the invention disclosed in the patent in suit- The evidence shows that when this mechanism is added to the Harris press, it permits the press to be speeded up 20 per cent, printing 24,600 envelopes per hour instead of a maximum of 21,000 per hour; and the evidence fully sustains the following summary of the benefits flowing from the invention made by the special master in his report: “It is not disputed that the Jones and Nielson suction feed renders possible a more rapid operation with fewer operatives; that the feed in operation is accurate, and certain, and in complete synchronism with the press; that it renders possible printing on either side of the envelope with the use of the same feed mechanism, and that feeding is stopped contemporaneously with the operation of the throw-off. That they were useful and practical improvements is demonstrated by their adoption, in modified form, by defendants.” - The purpose and intent of the founders of the Denominational Envelope Company, as shown by the evidchce, is likewise indisputable. It is manifest that they were fully acquainted with the successful application and use of the invention in the plaintiff’s plant, and desired to avail themselves of the same advantages in competition with the owner of the -patent without recognition of its monopoly; and for this purpose, the new company was not only directed and managed by former employees of the plaintiff, but Nielson, one of the inventors," }, { "docid": "11949999", "title": "", "text": "its incorporation. A press in the plant of the Union Envelope Company, of which Isaac Rheutan was secretary and treasurer, was similarly equipped. Shomaker was employed by the plaintiff company to take the place of Nielson and remained with it between 1925 and 1931 when he also went with the defendant company. He did the work of equipping the defendants’ machines with the devices covered by. the two patents discussed in the opinion in a companion suit No. 3851 filed this day [Duplex Envelope Co. v. Denominational Envelope Co. et al. (C.C.A.) 80 F.(2d) 179]. With respect to the construction and operation of the sucker block used in the defendants’ machines, substantial identity with the sucker block disclosed in the patent is not denied. The same thing may be said in regard to the cut-off mechanism in the two structures. The real contest centers upon the construction, location, and mode of operation of the defendants’ valve mechanism, the valve disclosed by the patent in suit being in fact the gist of the invention. In the defendants’ structure, the valve consists of two fixed plates bolted together and provided with ports extended entirely through them. One of these plates is a triangular casting bolted at its apex to the frame of the press. Through this casting and to the left of the valve assembly passes the operating shaft. Keyed on this shaft is a cam in which is cut an interior groove in which rides a cam roller. This roller is rigidly attached on the smaller end of an arm or lever shaped somewhat like a dog bone which constitutes the movable member of the valve assembly. The larger or expanded portion of the movable member operates between the two stationary members. It contains a port and also a recess vented to atmosphere. The timing of the valve in relation to the sucker block is similar to that described in connection with the plaintiff’s valve. As the operating shaft revolves, the cam revolving with it forces the cam roller around the groove and the roller, carrying with it the attached movable" }, { "docid": "11949997", "title": "", "text": "the sucker block at the moment when the block reaches its lowest point at the feed table, so that the vacuum is then released and the envelope deposited. The third element of the invention operates to discontinue the feeding process when the power is shut off from the press through a throw-off mechanism. This device consists of another disc also mounted upon the operating shaft and located between the rotating disc and the stationary member which connects with the vacuum pump. This second disc does not rotate with the shaft, but being loosely mounted, is partially movable thereon in a rotary manner. This disc is also provided with a port which, through the tension of a spring, is normally maintained in registry with the fixed ports of thé stationary members; but when the throw-off mechanism becomes operative, the disc in question, through a chain of mechanism, is slightly rotated, and its port is carried out of registry with the fixed ports so that the suction is immediately cut off and the feeding of the envelopes is stopped. It is convenient at this point to refer to the incorporation of the Denominational Envelope Company, the leading defendant in the District Court, and to describe the machine which is charged to have infringed the patent. The company was organized in Richmond in 1927 to go into the same business as the plaintiff company by Donald E. Rheutan and Stevens Hughes, who had just left its employ for that purpose. Donald E. Rheutan became the president, Richard D. Rheutan, a brother, treasurer, and Stevens Hughes, the secretary. Isaac Rheutan, the father of Donald and Richard, later became the owner of the majority of the stock. The company bought Harris presses similar to those used by the plaintiff, and then employed Albert W. Nielson, coinventor of the patent in suit, to install suction feed devices in order to make them comparable with those used by the plaintiff. Nielson, who had been the chief mechanic of the plaintiff company, left its employ in the fall of 1926 and was employed by the defendant shortly after" }, { "docid": "11949995", "title": "", "text": "through which extend a number of suction tubes. The block is carried on an arm which through a lug and a forked link is supported by an operating shaft that is constantly rotated in synchronism with the impression cylinder of the press. Upon this shaft is mounted an eccentric cam containing a groove in which rides a cam roller that is attached to the forked link. The cam rotates with the shaft, and the'cam roller, being forced around the groove, causes the sucker block to be raised into contact with the stack of envelopes and lowered to deposit the envelope drawn by suction from the bottom of the stack upon the feed table. The suction is then released and the envelope is pushed forward by reciprocating fingers to the feed rolls. The valve mechanism or the second of the elements referred to is the heart of the patent. It controls the application and release of the suction as the envelope is successively withdrawn from the stack and deposited on the feed table. The valve consists in part of two fixed stationary members mounted on the shaft that actuates the movement of the sucker block. Between these members is a disc which is keyed to the operating shaft and rotates therewith. The stationary members are provided with ports extending entirely through them; and the rotating disc is likewise provided ■ with a port which during the operation is ordinarily brought into and out of registry with the fixed ports. . On one side the'valve is connected with the sucker block, and on the other, to the vacuum pump, so that when the three ports are in registry, the suction is effective, but when the solid surfaces of the disc are interposed, the suction is cut off. The vacuum in the sucker block, however, is not entirely broken, for at the moment there is no release to atmosphere. This release is provided by a recess in the disc which extends partially through the disc and leads by a vent to atmosphere.' The recess comes into registry with the port that leads to" }, { "docid": "11949998", "title": "", "text": "is stopped. It is convenient at this point to refer to the incorporation of the Denominational Envelope Company, the leading defendant in the District Court, and to describe the machine which is charged to have infringed the patent. The company was organized in Richmond in 1927 to go into the same business as the plaintiff company by Donald E. Rheutan and Stevens Hughes, who had just left its employ for that purpose. Donald E. Rheutan became the president, Richard D. Rheutan, a brother, treasurer, and Stevens Hughes, the secretary. Isaac Rheutan, the father of Donald and Richard, later became the owner of the majority of the stock. The company bought Harris presses similar to those used by the plaintiff, and then employed Albert W. Nielson, coinventor of the patent in suit, to install suction feed devices in order to make them comparable with those used by the plaintiff. Nielson, who had been the chief mechanic of the plaintiff company, left its employ in the fall of 1926 and was employed by the defendant shortly after its incorporation. A press in the plant of the Union Envelope Company, of which Isaac Rheutan was secretary and treasurer, was similarly equipped. Shomaker was employed by the plaintiff company to take the place of Nielson and remained with it between 1925 and 1931 when he also went with the defendant company. He did the work of equipping the defendants’ machines with the devices covered by. the two patents discussed in the opinion in a companion suit No. 3851 filed this day [Duplex Envelope Co. v. Denominational Envelope Co. et al. (C.C.A.) 80 F.(2d) 179]. With respect to the construction and operation of the sucker block used in the defendants’ machines, substantial identity with the sucker block disclosed in the patent is not denied. The same thing may be said in regard to the cut-off mechanism in the two structures. The real contest centers upon the construction, location, and mode of operation of the defendants’ valve mechanism, the valve disclosed by the patent in suit being in fact the gist of the invention. In the" }, { "docid": "11949994", "title": "", "text": "the motive power was shut off. Three to ten revolutions would then ensue, during which the envelopes fed to the press were wasted; and this occurred the more frequently because the machinery was automatically stopped whenever the blades failed to function properly, as above described. These disadvantages were overcome through the development of the device covered by the patent in suit. The work was done by Archer G. Jones, founder of the plaintiff company, and Albert W. Nielson, who came to Richmond in 1917 to become its plant superintendent, leaving his former employment with the Harris Press Company for this purpose. The improvements which they made upon the Harris press are described in the patent in suit substantially as follows: There are three closely related parts of the feeding mechanism: (1) The suction feed means; (2) the valve mechanism whereby suction is applied to and released from the feed block; and (3) the means whereby feeding is stopped upon the operation of a throw-off mechanism. The suction feed means consist of a so-called sucker block through which extend a number of suction tubes. The block is carried on an arm which through a lug and a forked link is supported by an operating shaft that is constantly rotated in synchronism with the impression cylinder of the press. Upon this shaft is mounted an eccentric cam containing a groove in which rides a cam roller that is attached to the forked link. The cam rotates with the shaft, and the'cam roller, being forced around the groove, causes the sucker block to be raised into contact with the stack of envelopes and lowered to deposit the envelope drawn by suction from the bottom of the stack upon the feed table. The suction is then released and the envelope is pushed forward by reciprocating fingers to the feed rolls. The valve mechanism or the second of the elements referred to is the heart of the patent. It controls the application and release of the suction as the envelope is successively withdrawn from the stack and deposited on the feed table. The valve consists" } ]

[ { "docid": "14171754", "title": "", "text": "PICARD, District Judge. Motion to dismiss the indictment in the above matter, each of its four counts alleging a separate violation of Section 610, Title 18 of the U.S.C.A., Federal Corrupt Practices Act, prohibiting political expenditures by labor unions. The pertinent section is set out in the appendix together with the Act’s definitions of “expenditure” and “contribution”. Section 591. Here the specific charge is that the “expenditure\" violation came in connection with the selection of candidates for a senator and representatives to the United States Congress during the 1954 primary and general elections. It is alleged that defendant paid a specific amount from its general treasury fund to Luckoff and Wayburn Productions, Detroit, Michigan, to defray the costs of certain television broadcasts sponsored by the Union from commercial television station WJBK. It is charged that the broadcasts urged and endorsed selection of certain persons to be candidates for representatives and senator to the Congress of the United States and included expressions of political advocacy intended by defendant to influence the electorate and to affect the results of the election. It is further charged that the fund used came from the Union’s dues, was not obtained by voluntary political contributions or subscriptions from members of the Union, and was not paid for by advertising or sales. Findings of Fact For the purposes of this motion the charges alleged are taken as true. United States v. Jones, 5 Cir., 207 F.2d 785; Knoell v. United States, 3 Cir., 239 F. 16; United States v. Van Auken, 96 U.S. 366, 24 L.Ed. 852. The contention of defendant is, first, that the expenditures, admittedly so made, are not the type of expenditures intended to be covered and prohibited by Section 610 of the Act. Six other reasons for dismissing the indictment follow, and all are to the effect that should this court find that the expenditures made by defendant are covered by Section 610, then the provisions of that section are unconstitutional because — ■ (a) They abridge both freedom of speech and of the press, peaceable assemblage and right of petition, in violation" } ]

[ { "docid": "22207481", "title": "", "text": "may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” See also U. S. Const., Art. I, § 2, clause 1, § 8, clause 18. Cf. as to Congress’ power over the electoral process, Ex parte Yarbrough, 110 U. S. 651; United States v. Classic, 313 U. S. 299. As has been noted, the Senate debate went largely on the “minority protection” basis of justification with only inferential or incidental reference to corrupting influence and occasional suggestions of “undue influence.” See, however, the statements of Representative Hoffman, 93 Cong. Rec. 3428, and of Senator Taft, id. 6437. The brief, however, includes among the reasons for the prohibition of § 313 “A distrust of the use of large contributions, not because these prove corruption, but because the large single contributions imply resulting obligations and, therefore, can breed corruption”; and goes on to state that “there is no practical difference between a contribution and an expenditure so far as the effect of the use of money for campaign purposes is concerned.” Apparently the Senate sponsor considered that revenues derived from the operation of union newspapers, such as advertising revenues, etc., are available for political publicity, although they are union funds in which politically dissentient members have interests proportionally with concurring ones and, it seems, do not give explicit consent to such use. The situation, like the case of the regular incorporated press, would seem to be exceptional in permitting the union (or corporation) to use its own funds for political publicity. See note 12 supra. It would even seem questionable whether union funds, not individually earmarked for the purpose, could be used for calling union meetings to discuss and determine official political policies or to hear candidates or others expressing their views on campaign issues. Cf. note 30 infra. This difference is minimized, though noted, in the Government’s comparison of § 313 with the British legislation and experience. Cf. Trade Union Act of 1913, 2 & 3 Geo. V, c. 30; Trade Disputes and Trade Unions Act of 1927, 17 & 18 Geo." }, { "docid": "12346180", "title": "", "text": "relatively small union because of trifling expenditures for a newspaper advertisement and a broadcast criticizing candidates for federal elective offices owing to the alleged hostility of the candidates to the interests of unionized labor. In the decision in United States v. CIO, 335 U.S. 106, 68 S.Ct. 1349, a majority of the Supreme Court held that a publication in a union newspaper which was distributed to members and a few other persons, did not fall within the prohibition of the statute. While Mr. Justice Reed, who wrote the opinion in that case, laid some stress upon the fact that the publication was by -the union itself and reached a-somewhat limited class of readers, he nowhere said that a publication in an ordinary newspaper paid for out of the funds of a union would not also be outside of the toverage of the Act. Indeed, at one point he said: “Apparently ‘expenditures’ was added [by the amendment] to eradicate the doubt- that had been raised'as to the reach of ‘contribution,’ not to extend greatly the coverage of the section.” 335 U.S. at page 122, 68 S. Ct. at page 1357. It seems impossible, on principle, to differentiate the scope of that decision from the case we have before us. It is hard to imagine that a greater number of people would be affected by the advertisement and broadcasting in the present case than by publication in the union periodical dealt with in the CIO Litigation. In a practical sense the situations are very similar, for in the case at bar this small union owned no newspaper and a publication in the -daily press or by radio was as natural a way of communicating its views to its members as by a newspaper of its own. In each instance, it seems unreasonable to suppose that the members of the union objected to its policy in criticizing candidates for federal offices. In the CIO case this was thought to be true because the publication was a “normal organizational activit[y]”. See 335 U.S. at page 123, 68 S. Ct. at page 1357. In the" }, { "docid": "22147580", "title": "", "text": "for office could have his corporation friends publish an advertisement for him in the newspapers every day for a month before election. I do not think the law contemplated such a thing, but it was claimed that it did, at least when it applied to labor organizations. So, all we are doing here is plugging up the hole which developed, following the recommendation by our own Elections Committee, in the Ellender bill.” 93 Cong. Rec. 6439. After considerable debate, the conference version was approved by the Senate, and the bill subsequently became law despite the President’s veto. It is this section of the statute that the District Court held did not reach the activities alleged in the indictment. On review under the Criminal Appeals Act of a district court judgment dismissing an indictment on the basis of statutory interpretation, this Court must take the indictment as it was construed by the district judge. United States v. Borden Co., 308 U. S. 188. The court below summarized the allegations of the indictment at the outset of its opinion: “Here the specific charge is that the 'expenditure’ violation came in connection with the selection of candidates for a senator and representatives to the United States Congress during the 1954 primary and general elections. It is alleged that defendant paid a specific amount from its general treasury fund to Luckoff and Wayburn Productions, Detroit, Michigan, to defray the costs of certain television broadcasts sponsored by the Union from commercial television station WJBK. “It is charged that the broadcasts urged and endorsed selection of certain persons to be candidates for representatives and senator to the Congress of the United States and included expressions of political advocacy intended by defendant to influence the electorate and to affect the results of the election. “It is further charged that the fund used came from the Union’s dues, was not obtained by voluntary political contributions or subscriptions from members of the Union, and was not paid for by advertising or sales.” 138 F. Supp., at 54. Thus, for our purposes, the indictment charged appellee with having used union" }, { "docid": "22147584", "title": "", "text": "anybody to make a speech that would express to the people the point of view of that organization? “Mr. Taft. If it contributed its own funds to get somebody to make the speech, I would say they would violate the law. “Mr. Pepper. If they paid for the radio time? “Mr. Taft. If they are simply giving the time, I would say not; I would say that is in the course of their regular business. “Mr. Pepper. What I mean is this: I was not assuming that the radio station was owned by the labor organization. Suppose that in the 1948 campaign, Mr. William Green, as president of the American Federation of Labor, should believe it to be in the interest of his membership to go on the radio and support one party or the other in the national election, and should use American Federation of Labor funds to pay for the radio time. Would that be an expenditure which is forbidden to a labor organization under the statute? “Mr. Taft. Yes.” 93 Cong. Rec. 6439. The discussion that followed, while suggesting that difficult questions might arise as to whether or not a particular broadcast fell within the statute, buttresses the conclusion that § 304 was understood to proscribe the expenditure of union dues to pay for commercial broadcasts that are designed to urge the public to elect a certain candidate or party. United States v. C. I. O., 335 U. S. 106, presented a different situation. The decision in that case rested on the Court’s reading of an indictment that charged defend ants with having distributed only to union members or purchasers an issue, Yol. 10, No. 28, of “The CIO News,” a weekly newspaper owned and published by the C. I. 0. That issue contained a statement by the C. I. 0. president urging all members of the C. I. O. to vote for a certain candidate. Thus, unlike the union-sponsored political broadcast alleged in this case, the communication for which the defendants were indicted in C. I. 0. was neither directed nor delivered to the public at" }, { "docid": "22207410", "title": "", "text": "corporation or labor union for the purpose of advocating legislation advantageous to the sponsor or supporting candidates whose views are believed to coincide generally with those deemed advantageous to such organization is on a different level from newspapers devoted solely to the dissemination of news but the line separating the two classes is not clear. In the absence of definite statutory demarcation, the location of that line must await the full development of facts in individual cases. It is one thing to say that trade or labor union periodicals published regularly for members, stockholders or purchasers are allowable under § 313 and quite another to say that in connection with an election occasional pamphlets or dodgers or free copies widely scattered are forbidden. Senator Taft stated on the Senate floor that funds voluntarily contributed for election purposes might be used without violating the section and papers supported by subscriptions and sales might likewise be published. Members of unions paying dues and stockholders of corporations know of the practice of their respective organizations in regularly publishing periodicals. It would require explicit words in an act to convince us that Congress intended to bar a trade journal, a house organ or a newspaper, published by a corporation, from expressing views on candidates or political proposals in the regular course of its publication. It is unduly stretching language to say that the members or stockholders are unwilling participants in such normal organizational activities, including the advocacy thereby of governmental policies affecting their interests, and the support thereby of candidates thought to be favorable to their interests. It is our conclusion that this indictment charges only that the CIO and its president published with union funds a regular periodical for the furtherance of its aims, that President Murray authorized the use of those funds for distribution of this issue in regular course to those accustomed to receive copies of the periodical and that the issue with the statement described at the beginning of this opinion violated § 313 of the Corrupt Practices Act. We are unwilling to say that Congress by its prohibition against" }, { "docid": "14171762", "title": "", "text": "although authorized by its president. It will also be noted that Mr. Justice Reed’s majority opinion states that unless the legislation is so construed “the gravest doubt would arise in our minds as to its constitutionality.” (Emphasis ours.) United States v. Painters Local Union No. 481, 2 Cir., 172 F.2d 854. The second case of interpretation was United States v. Painters Local Union No. 481, 172 F.2d 854, 856, decided by the Second Circuit Court of Appeals in 1949. The charge was against the Union and its President for placing and paying for a political ad in a daily newspaper of general circulation and a political broadcast over a commercial radio station, both out of funds from the general treasury of the Union. In our opinion this case is on all fours with the case at bar except that it was a “television” broadcast instead of “radio” — which difference we do not deem important. In Painters Local Union, supra, motion for dismissal by defendant was denied by the District Court, 79 F.Supp. 516, which held the act constitutional. The question of whether these were “expenditures” within the meaning of the act was not raised by defendant nor discussed by the District Court and the case came to the Second Circuit supposedly solely on constitutional issues. Nevertheless that Court of Appeals reversed the District Court and, using the rationale of the Supreme Court in the C. I. O. opinion, supra, ruled on the scope of the statute and not on its constitutionality. It held that such political advertisements in a media of information commercially owned and of general cir culation were not prohibited “expenditures”. As Judge Hand stated “It seems impossible, on principle, to differentiate the scope of that decision (referring to U. S. v. C. I. O., supra) from the case we have before us.” We feel compelled to adopt that same language and repeat that the facts in United States v. Painters Local Union No. 481, supra, and the matter before us are as alike as two peas in a pod. Nor must we neglect to add that" }, { "docid": "14171761", "title": "", "text": "Taft, who assumed the burden of defending this particular section in the Senate, differentiated between funds used from dues, and those subscribed for or raised for a certain special purpose. In that case also (C. I. O. News, supra) it was emphasized that the word “expenditure” was merely added to the Act to cover situations not previously included within the accepted legislative interpretation of “contribution”. Justice Reed said “Apparently ‘expenditures’ was added to eradicate the doubt that had been raised as to the reach of ‘contribution,’ not to extend greatly the coverage of the section.” (Emphasis ours.) Therefore we find that when the first decision interpretive of this Act was announced by the Supreme Court of the United States one District Judge and four Justices of the Supreme Court had held the section unconstitutional and five Justices of the Supreme Court refused to pass upon its constitutionality as unnecessary, but nevertheless dismissed the indictment because it did not state a cause of action, to-wit, “expenditure” didn’t include the type of “expenditure” made by the Union, although authorized by its president. It will also be noted that Mr. Justice Reed’s majority opinion states that unless the legislation is so construed “the gravest doubt would arise in our minds as to its constitutionality.” (Emphasis ours.) United States v. Painters Local Union No. 481, 2 Cir., 172 F.2d 854. The second case of interpretation was United States v. Painters Local Union No. 481, 172 F.2d 854, 856, decided by the Second Circuit Court of Appeals in 1949. The charge was against the Union and its President for placing and paying for a political ad in a daily newspaper of general circulation and a political broadcast over a commercial radio station, both out of funds from the general treasury of the Union. In our opinion this case is on all fours with the case at bar except that it was a “television” broadcast instead of “radio” — which difference we do not deem important. In Painters Local Union, supra, motion for dismissal by defendant was denied by the District Court, 79 F.Supp. 516, which" }, { "docid": "22147581", "title": "", "text": "its opinion: “Here the specific charge is that the 'expenditure’ violation came in connection with the selection of candidates for a senator and representatives to the United States Congress during the 1954 primary and general elections. It is alleged that defendant paid a specific amount from its general treasury fund to Luckoff and Wayburn Productions, Detroit, Michigan, to defray the costs of certain television broadcasts sponsored by the Union from commercial television station WJBK. “It is charged that the broadcasts urged and endorsed selection of certain persons to be candidates for representatives and senator to the Congress of the United States and included expressions of political advocacy intended by defendant to influence the electorate and to affect the results of the election. “It is further charged that the fund used came from the Union’s dues, was not obtained by voluntary political contributions or subscriptions from members of the Union, and was not paid for by advertising or sales.” 138 F. Supp., at 54. Thus, for our purposes, the indictment charged appellee with having used union dues to sponsor commercial television broadcasts designed to influence the electorate to select certain candidates for Congress in connection with the 1954 elections. To deny that such activity, either on the part of a corporation or a labor organization, constituted an “expenditure in connection with any [federal] election” is to deny the long series of congressional efforts calculated to avoid the deleterious influences on federal elections resulting from the use of money by those who exercise control over large aggregations of capital. More particularly, this Court would have to ignore the history of the statute from the time it was first made applicable to labor organizations. As indicated by the reports of the Congressional Committees that investigated campaign expenditures, it was to embrace precisely the kind of indirect contribution alleged in the indictment that Congress amended § 313 to proscribe “expenditures.” It is open to the Government to prove under this indictment activity by appellee that, except for an irrelevant difference in the medium of communication employed, is virtually indistinguishable from the Brotherhood of Railway" }, { "docid": "22207432", "title": "", "text": "of constitutionality unnecessarily. I adhere to that policy. But I do not think it justifies invasion of the legislative function by rewriting or emasculating the statute. This in my judgment is what has been done in this instance. Accordingly I dissent from the construction given to the statute and from the misapplication of the policy. I also think the statute patently invalid as applied in these circumstances. I. The Court’s interpretation of the section and the indictment are not entirely clear to me. But, as I understand the ruling, it is only that § 313 does not forbid labor unions to take part in pending elections by publishing and circulating newspapers in regular course among their membership, although the costs of publication are paid from the union’s general funds regardless of their source, i. e., whether from subscriptions, advertising revenues and returns from per copy sales, or from union dues and other sources. The line of coverage is marked without reference to the source from which the union derives the funds so expended, but by whether others than members of the union receive free copies of the publication; and by whether the publication is “in regular course” or only in casual or occasional distributions. Apparently, in the latter event, circulation limited to the membership would fall within the prohibition as well as free (and perhaps also paid) distribution outside that circle. The construction therefore comes down to finding that Congress did not intend to forbid these expenditures, though made from union funds, since they were made: (1) to sustain the publication of the union’s political views; (2) in the regular course of publishing and distributing a union newspaper; (3) with distribution limited substantially to union members and not including outsiders. It is because applying § 313 to this type of expenditure would raise “the gravest doubt” of the section’s constitutionality that the Court holds the section inapplicable. If such an interpretation were tenably supportable on any other basis, I should be in accord with this happy solution. But neither the language of the section nor its history affords such a" }, { "docid": "22207454", "title": "", "text": "in that manner if contributed expressly for the purpose or derived from such sources as advertising revenues, subscriptions, etc., received in connection with publication of a paper in regular course or otherwise. The limitation of the prohibition to funds received generally, i. e., without specific designation for use in political publicity, is almost wholly a construction of the Senate sponsor, so far as appears from the legislative history. Notwithstanding accepted canons of statutory construction, it certainly would be going far to expect laymen, or even lawyers, to read a statute so lacking in specificity concerning its basic criterion with any semblance of understanding of its limitations. The lawyer might indeed read the Congressional Record and conclude that the source of the funds used was the crux. But even he would be left in broad and deep doubt whether it would turn multitudinous situations one way or the other. If the section is taken nevertheless to have been intended to draw the sponsor’s line of distinction, the restriction it makes remains a drastic one. The effect is not merely one of minority protection. It is also one of majority prohibition. Cf. DeMille v. American Federation of Radio Artists, supra. Under the section as construed, the accepted principle of majority rule which has become a bulwark, indeed perhaps the leading characteristic, of collective activities is rejected in favor of atomized individual rule and action in matters of political advocacy. Ibid. Union activities in political publicity are confined to the use of funds received from members with their explicit designation given in advance for the purpose. Funds so received from members can be thus expended and no others. Even if all or the large majority of the members had paid dues with the general understanding that they or portions of them would be so used, but had not given explicit authorization, the funds could not be so employed. And this would be true even if all or the large majority were in complete sympathy with the political views expressed by the union or on its behalf with any expenditure of money, however small." }, { "docid": "22072115", "title": "", "text": "statute prohibiting corporate contributions and expenditures to candidates. The statute as amended forbade any corporation or labor organization to make a “contribution or expenditure in connection with any election ...” for federal office. The 1946 Report of the House Special Committee to Investigate Campaign Expenditures explained the rationale for the amendment, noting that it would undermine the basic objective of § 610 “if it were assumed that the term ‘making any contribution' related only to the donating of money directly to a candidate, and excluded the vast expenditures of money in the activities herein shown to be engaged in extensively. Of what avail would a law be to prohibit the contributing direct to a candidate and yet permit the expenditure of large sums in his behalf?” H. R. Rep. No. 2739, 79th Cong., 2d Sess., 40, quoted in Automobile Workers, supra, at 581. During the legislative debate on the bill, Senator Taft was asked whether § 610 permitted a newspaper published by a railway union to put out a special edition in support of a political candidate, or whether such activity would be considered a political expenditure. The Senator replied: “If it were supported by union funds contributed by union members as union dues it would be a violation of the law, yes. It is exactly as if a railroad itself, using its stockholders’ funds, published such an advertisement in the newspaper supporting one candidate as against another . . . .” 93 Cong. Rec. 6436-6437 (1947). United States v. CIO, 335 U. S. 106 (1948), narrowed the scope of this prohibition, by permitting the use of union funds to publish a special edition of the weekly CIO News distributed to union members and purchasers of the issue. In Automobile Workers, supra, however, we held that a union was subject to indictment for using union dues to sponsor political advertisements on commercial television. Distinguishing CIO, we stated that the concern of the statute “is the use of corporation or union funds to influence the public at large to vote for a particular candidate or a particular party.” 352 U. S.," }, { "docid": "22207433", "title": "", "text": "whether others than members of the union receive free copies of the publication; and by whether the publication is “in regular course” or only in casual or occasional distributions. Apparently, in the latter event, circulation limited to the membership would fall within the prohibition as well as free (and perhaps also paid) distribution outside that circle. The construction therefore comes down to finding that Congress did not intend to forbid these expenditures, though made from union funds, since they were made: (1) to sustain the publication of the union’s political views; (2) in the regular course of publishing and distributing a union newspaper; (3) with distribution limited substantially to union members and not including outsiders. It is because applying § 313 to this type of expenditure would raise “the gravest doubt” of the section’s constitutionality that the Court holds the section inapplicable. If such an interpretation were tenably supportable on any other basis, I should be in accord with this happy solution. But neither the language of the section nor its history affords such a basis, unless indeed it may be that the wording is so broad, comprehensive, and indefinite that any possible construction which would apply to a union's publication of its political views would be subject to equally grave constitutional doubt, and therefore was not intended to be covered. Indeed, so far as the present opinion concludes, that may be the case. For it does not hold that distribution outside the circle of membership, even in regular course, is forbidden or, if so, the prohibition would be constitutionally permissible. Neither does it rule that either consequence would follow from casual or occasional distribution within or without that circle. At the most it is indicated that the section more probably or possibly covers those situations than the one now eliminated. But there seems to be no corresponding intimation that the section would be valid in such coverage. In fact the opinion points to no situation, relating to a union's expression of political views, which certainly could be taken as included and validly so. This, of course, comes down to" }, { "docid": "22207471", "title": "", "text": "are contributing to, and the dues which they pay into the union treasury are not used for such purpose.” (Id. 6440.) Section 313 of the Corrupt Practices Act, as amended by § 304 of the Labor Management Relations Act of 1947, 61 Stat. 159. Rescue Army v. Municipal Court, 331 U. S. 549; Ashwander v. Valley Authority, 297 U. S. 288, concurring opinion of Mr. Justice Brandeis at 346-348; Federation of Labor v. McAdory, 325 U. S. 450; United Public Workers v. Mitchell, 330 U. S. 75. The statutory wording is: “. . . expenditure in connection with any election at which Presidential and Vice Presidential electors or a Senator or Representative in, or a Delegate or Resident Commissioner to Congress are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing offices . . . The indictment explicitly charges that “The CIO News” was regularly (weekly) published by the C. I. 0. and costs of publication and distribution, including the issue in question, were paid from the union’s funds. There was no allegation concerning their source, whether from revenues not connected with or earmarked for receipt of the paper or from sources specifically so connected. The Court’s opinion does not, nor could it fairly, assume that the allegations were limited to expenditure of funds derived from subscriptions, advertising revenues or returns from per copy sales. The opinion explicitly holds that source of the funds is immaterial under § 313 for coverage of the type of publication and circulation here involved. By the opinion’s phrase, “in regular course to those accustomed to receive copies,” p. 123, ante (emphasis added), room seems to be left for the inference that insubstantial distribution outside the membership would not tend to bring the case within the section’s terms. See note 3. The section as presently effective is quoted in full at note 1 of the Court’s opinion. “Contribution” had been construed by legislative committees investigating campaign expenditures prior to 1947, see notes 9 and 10, though not always unanimously," }, { "docid": "12346179", "title": "", "text": "of their motions. The court ■thereupon sentenced the defendant Union to pay a fine of $200 on each of four counts of the indictment, and sentenced the defendant O’Brien to pay a fine of $100 on each of the two counts of the indictment and judgments were entered accordingly. The defendants each appealed from the judgment of conviction upon the ground that amended Section 313 violated the First, Fifth, Sixth, Ninth and Tenth Amendments of the. Constitution of the United States. They made no contention that the section, if valid, was not violated, although such a contention, so far as tenable, would seem to be the more natural approach to establish their innocence. A similar course was adopted by the defendants in United States v. CIO, 335 U.S. 106, 68 S.Ct. 1349, as particularly adverted to by Mr. Justice Frankfurter, 335 U.S. at pages 128, 129, 68 S.Ct. at page 1360, yet the court on its own motion determined that the statute was inapplicable. In the case at bar we have a prosecution of a relatively small union because of trifling expenditures for a newspaper advertisement and a broadcast criticizing candidates for federal elective offices owing to the alleged hostility of the candidates to the interests of unionized labor. In the decision in United States v. CIO, 335 U.S. 106, 68 S.Ct. 1349, a majority of the Supreme Court held that a publication in a union newspaper which was distributed to members and a few other persons, did not fall within the prohibition of the statute. While Mr. Justice Reed, who wrote the opinion in that case, laid some stress upon the fact that the publication was by -the union itself and reached a-somewhat limited class of readers, he nowhere said that a publication in an ordinary newspaper paid for out of the funds of a union would not also be outside of the toverage of the Act. Indeed, at one point he said: “Apparently ‘expenditures’ was added [by the amendment] to eradicate the doubt- that had been raised'as to the reach of ‘contribution,’ not to extend greatly the coverage" }, { "docid": "12346182", "title": "", "text": "case at bar, the expenditures were authorized by a vote of the union members at a meeting duly held. In view of the foregoing, the expenditures cannot be regarded as prohibited by the statute. Even if the contention that -the financial or group power exercised over elections through labor unions may be curbed, either by limiting the amount of their expenditures or by prohibiting -them altogether, be thought reasonable, an interpretation of the statute which would allow such expenditures in the case of a union publication and prohibit them when made by a union through the use of an independent newspaper or radio station seems without logical justification; nor is such a differentiation suggested by the apparent purposes or by the -terms of the statute or by its legislative history. We should bear in mind the further important consideration that all of the Justices of the Supreme Court who participated in the CIO decision regarded the prohibition of the statute if applied to the facts of that case either as involving an undue abridgment of the rights of free speech, free press, and free assembly, or at best as\" of exceedingly doubtful constitutionality. Because of the similarity of -the facts before us to those in the CIO decision above-mentioned we do not feel free to regard the issue of constitutionality as one completely of first impression, as did Judge Hincks in his thoughtful opinion. Under the circumstances we are constrained to hold that the statute did not cover the publications effected by the defendants in the case at bar. For the foregoing reasons, the judgment is reversed with directions -to dismiss the indictment. See. 313. “It is unlawful for any national bank, or any corporation organized by authority of any law of Congress, to make a contribution or expenditure in connection with any election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, or for any corporation whatever, or any labor organization to make a contribution or expenditure in connection with any election at which" }, { "docid": "12346181", "title": "", "text": "of the section.” 335 U.S. at page 122, 68 S. Ct. at page 1357. It seems impossible, on principle, to differentiate the scope of that decision from the case we have before us. It is hard to imagine that a greater number of people would be affected by the advertisement and broadcasting in the present case than by publication in the union periodical dealt with in the CIO Litigation. In a practical sense the situations are very similar, for in the case at bar this small union owned no newspaper and a publication in the -daily press or by radio was as natural a way of communicating its views to its members as by a newspaper of its own. In each instance, it seems unreasonable to suppose that the members of the union objected to its policy in criticizing candidates for federal offices. In the CIO case this was thought to be true because the publication was a “normal organizational activit[y]”. See 335 U.S. at page 123, 68 S. Ct. at page 1357. In the case at bar, the expenditures were authorized by a vote of the union members at a meeting duly held. In view of the foregoing, the expenditures cannot be regarded as prohibited by the statute. Even if the contention that -the financial or group power exercised over elections through labor unions may be curbed, either by limiting the amount of their expenditures or by prohibiting -them altogether, be thought reasonable, an interpretation of the statute which would allow such expenditures in the case of a union publication and prohibit them when made by a union through the use of an independent newspaper or radio station seems without logical justification; nor is such a differentiation suggested by the apparent purposes or by the -terms of the statute or by its legislative history. We should bear in mind the further important consideration that all of the Justices of the Supreme Court who participated in the CIO decision regarded the prohibition of the statute if applied to the facts of that case either as involving an undue abridgment of" }, { "docid": "22256623", "title": "", "text": "contributions. [United States v. CIO, 335 U. S., at 113.] This consideration would be meaningless if a corporation could make expenditures for activities otherwise forbidden by section 610 by simply obtaining unanimous consent of its shareholders. In the Auto Workers case, the indictment contained no allegation that the expenditure of union funds [to finance television broadcasts designed to influence the electorate at large]' was contrary to the wish of members. Nevertheless, the Supreme Court found the indictment sufficient.” The Ninth Circuit’s reliance on Auto Workers was misplaced. The indictment there did allege, as we noted, 352 U. S., at 584, “ ‘that the' fund used came from the Union’s dues, was not obtained by voluntary political contributions or- subscriptions from members of the Union, and was not paid for by advertising or sales.’ ” In Auto Workers, therefore, we had no-oecasion to address the legitimacy of union-controlled political contributions financed from the knowing free-choice donations of union members. More important, the court in Lewis labored under the same misapprehension on which the Government’s argument rests here — namely, that the legislative purpose to eliminate the effects of aggregated wealth on federal elections reaches union- or corporation-controlled contributions and expenditures financed not from the general treasury, but from voluntary donations.. By saying this, we do not'-mean to suggest that the result in Lewis was incorrect. To the contrary, an indictment that alleges a contribution or expenditure from the general treasury of a union or corporation in connection with a federal election states an offense. See nn. 47 and 48, infra. The unanimous vote of the union members or stockholders may at most (but we need not now decide) be a defense. In United States v. CIO, this Court, of course, went further than Senator Taft’s comments would allow by holding that §304 did not bar a union from using union funds to publish á periodical, in regular course and for distribution to those accustomed to receiving it, that urged union members to vote for a candidate for Congress- The Court, however; arrived at that construction because the contrary interpretation would créate" }, { "docid": "22072116", "title": "", "text": "political candidate, or whether such activity would be considered a political expenditure. The Senator replied: “If it were supported by union funds contributed by union members as union dues it would be a violation of the law, yes. It is exactly as if a railroad itself, using its stockholders’ funds, published such an advertisement in the newspaper supporting one candidate as against another . . . .” 93 Cong. Rec. 6436-6437 (1947). United States v. CIO, 335 U. S. 106 (1948), narrowed the scope of this prohibition, by permitting the use of union funds to publish a special edition of the weekly CIO News distributed to union members and purchasers of the issue. In Automobile Workers, supra, however, we held that a union was subject to indictment for using union dues to sponsor political advertisements on commercial television. Distinguishing CIO, we stated that the concern of the statute “is the use of corporation or union funds to influence the public at large to vote for a particular candidate or a particular party.” 352 U. S., at 589. The Federal Election Campaign Act enacted the prohibition now found in § 441b. This portion of the Act simply ratified the existing understanding of the scope of § 610. See Pipefitters, supra, at 410-411. Representative Hansen, the sponsor of the provision, declared: “The effect of this language is to carry out the basic intent of section 610, which is to prohibit the use of union or corporate funds for active electioneering directed at the general public on behalf of a candidate in a Federal election.” 117 Cong. Rec. 43379 (1971). The Representative concluded: “The net effect of the amendment, therefore, is to tighten and clarify the provisions of section 610 of title 18, United States Code, and to codify the case law.” Ibid. Thus, the fact that § 441b uses the phrase “to any candidate ... in connection with any election,” while § 610 provided “in connection with any primary election,” is not evidence that Congress abandoned its restriction, in force since 1947, on expenditures on behalf of candidates. We therefore find no" }, { "docid": "22147585", "title": "", "text": "6439. The discussion that followed, while suggesting that difficult questions might arise as to whether or not a particular broadcast fell within the statute, buttresses the conclusion that § 304 was understood to proscribe the expenditure of union dues to pay for commercial broadcasts that are designed to urge the public to elect a certain candidate or party. United States v. C. I. O., 335 U. S. 106, presented a different situation. The decision in that case rested on the Court’s reading of an indictment that charged defend ants with having distributed only to union members or purchasers an issue, Yol. 10, No. 28, of “The CIO News,” a weekly newspaper owned and published by the C. I. 0. That issue contained a statement by the C. I. 0. president urging all members of the C. I. O. to vote for a certain candidate. Thus, unlike the union-sponsored political broadcast alleged in this case, the communication for which the defendants were indicted in C. I. 0. was neither directed nor delivered to the public at large. The organization merely distributed its house organ to its own people. The evil at which Congress has struck in § 313 is the use of corporation or union funds to influence the public at large to vote for a particular candidate or a particular party. Our holding that the District Court committed error when it dismissed the indictment for having failed to state an offense under the statute implies no disrespect for “the cardinal rule of construction, that wdiere the language of an act will bear two interpretations, equally obvious, that one which is clearly in accordance with the provisions of the constitution is to be preferred.” Knights Templars’ Indemnity Co. v. Jarman, 187 U. S. 197, 205. The case before us does not call for its application. Here only one interpretation may be fairly derived from the relevant materials. The rule of construction to be invoked when constitutional problems lurk in an ambiguous statute does not permit disregard of what Congress commands. Appellee urges that if, as we hold, 18 U. S. C." }, { "docid": "22256622", "title": "", "text": "Government’s theory in prosecuting this case focused on the first, but not the second, of its arguments here presented. For .the'scope of the required segregation of funds, see infra, at 428-432. The Government relies on United States v. Lewis Food Co., 366 F. 2d 710 (1966), where the Court of Appeals for the Ninth Circuit upheld an indictment under § 610 that failed to allege, inter alia, that an expenditure by a corporation in connection with a federal election was made against the wishes of an individual stockholder. The court there explained, id., at 713-714: “The statute itself . . . does not provide an exception when stockholders consent. We are of the opinion that Congress intended to insure against officers proceeding in such matters without obtaining the consent of shareholders by forbidding all such expenditures. “The Supreme Court stated that the other legislative motivation [in addition to the protection of minority interests] for enactment of legislation such as section 610 was the necessity for destroying the influence over elections which corporations exercised through financial contributions. [United States v. CIO, 335 U. S., at 113.] This consideration would be meaningless if a corporation could make expenditures for activities otherwise forbidden by section 610 by simply obtaining unanimous consent of its shareholders. In the Auto Workers case, the indictment contained no allegation that the expenditure of union funds [to finance television broadcasts designed to influence the electorate at large]' was contrary to the wish of members. Nevertheless, the Supreme Court found the indictment sufficient.” The Ninth Circuit’s reliance on Auto Workers was misplaced. The indictment there did allege, as we noted, 352 U. S., at 584, “ ‘that the' fund used came from the Union’s dues, was not obtained by voluntary political contributions or- subscriptions from members of the Union, and was not paid for by advertising or sales.’ ” In Auto Workers, therefore, we had no-oecasion to address the legitimacy of union-controlled political contributions financed from the knowing free-choice donations of union members. More important, the court in Lewis labored under the same misapprehension on which the Government’s argument rests" } ]

[ { "docid": "271683", "title": "", "text": "Call Out the Marines: An Assessment of the Posse Comitatus Act, 13 Tex.Tech L.Rev. 1467 (1982). Congress has also sought to clarify the role of the military through recent enactments. H.R. Rep. No. 97-71, supra, at 3. As codified, sections 371 and 372 of Title 10 allow the military to share information and equipment with civilian law enforcement officials in certain instances. Sections 374(a) and (b) allow the Secretary of Defense to assign military personnel to operate and maintain equipment loaned to civilian officials in order to “monitor[] and communicate[ ] the movement of air and sea traffic.” 10 U.S.C. §§ 371, 372, 374(a), (b). Moreover, in examining allegations that military involvement in civilian law enforcement violated the Posse Comitatus Act, courts have noted that “aerial photographic reconnaissance flights and other like activities” do not reflect direct military involvement violative of the Posse Comitatus Act. Red Feather, 392 F.Supp. at 925. See also United States v. McArthur, 419 F.Supp. 186, 194 (D.N.D.1975), aff'd sub nom., United States v. Casper, 541 F.2d 1275 (8th Cir.1976) (per curiam), cert. denied, 430 U.S. 970, 97 S.Ct. 1654, 52 L.Ed.2d 362 (1977). It should also be noted that, even where a violation of the Posse Comitatus Act is found or suspected, courts have generally-found that creation or application of an exclusionary rule is not warranted. United States v. Wolffs, 594 F.2d 77 (5th Cir.1979); United States v. Roberts, 779 F.2d 565 (9th Cir.1986) (violation of Navy regulations and 10 U.S.C. §§ 371-378; no application or creation of exclusionary rule warranted); United States v. Walden, 490 F.2d 372 (4th Cir.), cert. denied, 417 U.S. 977, 94 S.Ct. 3187, 41 L.Ed.2d 1148 (1974); State v. Danko, 219 Kan. 490, 548 P.2d 819 (1976); State v. Sanders, 303 N.C. 608, 281 S.E.2d 7 (1981), cert. denied, 454 U.S. 973, 102 S.Ct. 523, 70 L.Ed.2d 392 (1981). In Wolffs, this Court “pretermit[ted] discussion of whether there was a violation of the [Posse Comitatus Act] or [Army] regulation” in a case involving use of agents of the Army in a narcotics investigation. This Court stated: We need not decide" } ]

[ { "docid": "11799074", "title": "", "text": "Oir.), cert. denied, 345 U.S. 936, 73 S.Ct. 798, 97 L. Ed. 1364 (1953). . United States v. Johnson, 327 U.S. 106, 111, 66 S.Ct. 464, 90 L.Ed. 562 (1946); United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958); Weiss v. United States, 122 F.2d 675, 691 (5th Cir.), cert. denied, 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550 (1941). . In this instance the Court is applying the . so-called Berry test, Berry v. State, 10 Ga. 511, 527 (1851), and not the Larrison test, Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928), applicable in instances of recantation of testimony. Cf. United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958). See also, United States v. Johnson, 327 U.S. 106, 110 n. 4, 111 n. 5, 66 S.Ct. 464, 90 L.Ed. 562 (1946). . United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958); United States v. On Lee, 201 F.2d 722, 723 n. 3 (2d Cir.), cert. denied, 345 U.S. 936, 66 S.Ct. 464, 90 L.Ed. 562 (1953); United States v. Hiss, 107 F. Supp. 128, 136 (S.D.N.Y.1952), aff’d on opinion below, 201 F.2d 372 (2d Cir.), cert. denied, 345 U.S. 942, 73 S.Ct. 830, 97 L.Ed. 1368 (1953). See Mills v. United States, 281 F.2d 736, 738 (4th Cir. 1960). . The defense was conducted with such vigor and ability that the Trial Judge not only commended counsel, but suggested that the younger members of the Bar might well profit by the example of advocacy. Appendix, Defendant’s Brief on Appeal 272a, United States v. Fassoulis, 293 F.2d 243 (2d Cir. 1961). . United States v. Sumpter, 111 F.Supp. 507, 511 (S.D.N.Y.1953), aff’d, 228 F. 2d 290 (1955). See United States v. Bertone, 249 F.2d 156, 160 (3d Cir. 1957). Cf. United States ex rel. Reid v. Richmond, 295 F.2d 83, 89-90 (2d Cir. 1961); United States" }, { "docid": "20863389", "title": "", "text": "District of Texas ruled on that motion before addressing the merits of the parties’ arguments. After reviewing the record and the applicable law, however, we are satisfied that we may exercise subject matter jurisdiction over the case. . Mid-South Towing Co. v. Har-Win, Inc., 733 F.2d 386, 390 (5th Cir.1984) (citing Autera v. Robinson, 419 F.2d 1197, 1200 (D.C.Cir.1969)). . Harmon v. Journal Publ’g Co., 476 Fed.Appx. 756, 757 (5th Cir.2012). . Mid-South, 733 F.2d at 390 (citing Autera, 419 F.2d at 1200). . Tiernan v. Devoe, 923 F.2d 1024, 1031 (3d Cir.1991) (internal citations omitted). . Id. at 1032. . In this respect, a contested motion to enforce a settlement agreement differs from a motion to summary judgment, which would instead' result in remand for a trial on the merits if the non-movant identified a genuine issue of material fact. , . See Mid-South, 733 F.2d at 390 (citing Autera, 419 F.2d at 1200). . Borne v. A & P Boat Rentals No. 4, Inc., 780 F.2d 1254, 1256 (5th Cir.1986) (citations omitted). BP argues that Louisiana rather than federal law applies because the Release, which BP never mailed to Johnson and Johnson never signed, contains a choice of law clause. We need not decide whether that choice of law clause binds us here. BP does not argue that the result of the case would differ under Louisiana law, and in any event BP relies heavily on cases from outside Louisiana. . See Hisel v. Upchurch, 797 F.Supp. 1509, 1518 (D.Ariz.1992). . See, e.g., Flores v. Koster, Civil No. 3:11-CV-0726-M-BH, 2013 WL 6153280, at *3 (N.D.Tex. Nov. 22, 2013); United States ex rel. Osheroff v. MCCI Group Holdings, No. 10-24486-cv-SCOLA, 2013 WL 3991964, at *3-4 (S.D.Fla. Aug. 2, 2013); Hisel, 797 F.Supp. at 1518. . 1 Williston on Contracts § 4.1 (4th ed.2014). . Davison v. Bay Area Credit Serv., LLC, No. 12-03411-CV-S-DGK, 2013 WL 627003, at *1 (W.D.Mo. Feb. 20, 2013) (citations omitted). Accord, e.g., Mastroni-Mucker v. Allstate Ins. Co., 976 A.2d 510, 522 (Pa.Super.Ct.2009) (citations omitted). . See Gen. Metal Fabricating Corp. v. Stergiou, 438 S.W.3d 737," }, { "docid": "23194966", "title": "", "text": "the Army of the United States, as-a.posse comitatus, or otherwise, for the purpose of- executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; * * * and any person willfully violating the provisions of this section - shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding $10,000 or imprisonment not exceeding two years or by both such fine and imprisonment.” As the Chandler case points out, the immediate purpose of the above provision was “to put an end to the use of federal troops to police state elections in the ex-Confederate states where the civil power had been reestablished.” Chandler v. United States, supra, 171 F.2d at page 936. By using the words “posse comitatus” the Congress intended to preclude the Army from assisting local law enforcement officers in carrying out their duties. The use of our Army of Occupation in Germany could not be characterized as -a “posse comitatus” since it was the law enforcement agency in Germany at the time of appellant’s arrest. “The right of one belligerent to occupy and govern the territory of the enemy while in its military possession is one of the incidents of war, and flows directly from the right to conquer. We, therefore, do not look to the Con stitution, or political institutions of the conqueror, for authority to establish a government for the territory of the enemy in his possession, during its military occupation, nor for the rules by which the powers of such government are regulated and limited.” Dooley v. United States, 1900, 182 U.S. 222, 230, 21 S.Ct. 762, 765, 45 L.Ed. 1074, quoting Halleck on International Law, Vol. II, page 444. See, also, MacLeod v. United States, 1912, 229 U.S. 416, 425, 33 S.Ct. 955, 57 L.Ed. 1260. The right to arrest being a part of the right to govern, it cannot be doubted that our Army of Occupation was authorized to arrest notwithstanding 10 U.S.C.A. § 15. Since" }, { "docid": "9476742", "title": "", "text": "Ltd. v. DC Comics, Inc., 112 F.Supp.2d 330, 334 (S.D.N.Y.2000) (\"[T]he statute of limitations for violation of New York’s Anti-Dilution Statute, N.Y. Gen. Bus. Law § 360-1 ... is three years.”); Zinter Handling, Inc. v. General Elec. Co., 101 A.D.3d 1333, 956 N.Y.S.2d 626, 630 (3d Dep’t 2012) (finding that state law unfair competition claim is governed by three-year statute of limitations). . Vaad L’Hafotzas Sichos, Inc. v. Kehot Publ’n Soc., 935 F.Supp.2d 595, 602 (E.D.N.Y.2013) (noting that without laches, \"a plaintiff could delay filing suit indefinitely”). Accord Petrella v. Metro-Goldwyn-Mayer, Inc.,-U.S.-, 134 S.Ct. 1962, 1974 n. 15, 188 L.Ed.2d 979 (2014) (\"In contrast to the Copyright Act, the Lanham Act, which governs trademarks, contains no statute of limitations, and expressly provides for defensive use of 'equitable principles, including laches.'”) (quoting 15 U.S.C. § 1115(b)(9)). . Saratoga Vichy Spring Co. v. Lehman, 625 F.2d 1037, 1040 (2d Cir.1980). . See 2/18/11 Order (granting FTE’s motion to amend the SAC “with Defendants’ consent”). . See Def. Mem. at 3. . Id. at 3-4 (citing TAC ¶¶ 89-92). . See Arthur Glick Truck Sales, Inc. v. Stuphen E. Corp., 965 F.Supp.2d 402, 405 (S.D.N.Y.2013), aff'd sub nom., Arthur Glick Truck Sales, Inc. v. Travelers Cas. & Sur. Co. of America, 577 Fed.Appx. 11 (2d Cir.2014) C‘[A] motion for reconsideration is not an opportunity for a losing party to advance new arguments to supplant those that failed in the prior briefing of the issue.”). .Moreover, Defendants support their new argument with allegations drawn from the TAC in FTE III but omitted from FTE's present Complaint. As noted, given its tardiness, I need not consider this argument at all. However, I note in passing that “[a] party's assertion of fact in a pleading is a judicial admission by which it normally is bound throughout the course of the proceeding,” it is not considered binding in a subsequent proceeding. Setevage v. Department of Homeland Sec., 539 Fed.Appx. 11, 13 (2d Cir.2013) (citing Bellefonte Re Ins. Co. v. Argonaut Ins. Co., 757 F.2d 523, 528-29 (2d Cir.1985)). Accord American Tissue, Inc. v. Donaldson, Lufkin & Jenrette" }, { "docid": "14407006", "title": "", "text": "U.S. courthouse doors to vindicate harms caused by egregious conduct perpetrated by foreigners overseas were of particular concern to the Kiobel Court, which stated that “accepting petitioners’ view would imply that other nations, also applying the law of nations, could hale our citizens into their courts for alleged violations of the law of nations occurring in the United States, or anywhere else in the world.” Id. at 1669. Thus, the Court found, “[t]he presumption against extraterritoriality guards against our courts triggering serious foreign policy consequences, and instead defers such decisions, quite appropriately, to the political branches.” Id.; see also Doe v. Exxon Mobil Corp., 654 F.3d 11, 77-78 (D.C.Cir. 2011) (Kavanaugh, J. dissenting in part) (listing ongoing protests by foreign governments to extraterritorial application of ATS for “improperly interfereflng] with their rights to regulate their citizens and conduct in their own territory”), vacated and remanded by 527 Fed.Appx. 7 (D.C.Cir.2013). Similarly to the ATS, the FSIA is a jurisdictional statute because it “take[s] away no substantive right but simply changes the tribunal to hear the case.” Princz, 26 F.3d 1166, 1170 (alteration in original, quotation marks and citation omitted). Yet, as the exclusive method under which litigants may hale foreign sovereigns into courts in the United States, see id. the FSIA implicates the same policy considerations about which the Supreme Court advised caution in Kiobel, 133 S.Ct. at 1669. If anything, the policy concerns raised in Kiobel, where jurisdiction was sought over a foreign corporation, see Kiobel, 133 S.Ct. at 1663, apply a fortiori in the FSIA context, where jurisdiction is sought over a foreign sovereign. Most recently, in Daimler AG v. Baumann (Daimler), — U.S.-,-, 134 S.Ct. 746, 763, 187 L.Ed.2d 624 (2014), the Supreme Court discussed the need to hon- or international comity, this time in the context of a suit against a German company, under the ATS and Torture Victim Protection Act, for alleged human rights violations that took place outside of U.S. territory during Argentina’s “dirty war,” id. at 751. The Supreme Court found that a federal court in California could not exercise general jurisdiction over" }, { "docid": "20823063", "title": "", "text": "Petroleum, 621 F.3d 111, 149 (2d Cir.2010), aff'd on other grounds, — U.S. —, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013). Plaintiffs cite to several pre-Kiobel cases that recognized corporate liability under the ATS. See Doe v. Exxon Mobil Corp., 654 F.3d 11, 57 (D.C.Cir.2011), vacated, 527 Fed.Appx. 7, 7 (D.C.Cir.2013); Sarei v. Rio Tinto PLC, 671 F.3d 736, 761 (9th Cir.2011) (en banc), cert. granted and judgment vacated, — U.S. —, 133 S.Ct. 1995, 185 L.Ed.2d 863 (2013) (vacating on the basis of Kiobel), dismissed on remand, 122, F.3d 1109 (9th Cir.2013) (affirming the district court’s dismissal with prejudice); Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1021 (7th Cir.2011). Plaintiffs further note that the Supreme Court in Kiobel appeared to contemplate the possibility of corporate liability. Kiobel, 133 S.Ct. at 1669 (“Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.”). The Fourth Circuit has not addressed this issue. Post-Kiobel, several courts have found that corporations may be held liable under the ATS. See Doe I v. Nestle USA, Inc., 738 F.3d 1048, 1049 (9th Cir.2013); In re South African Apartheid Litig., 5 F.Supp.3d 454, 461-65, No. 02 MDL 1499, 2014 WL 1569423, at *6-9 (S.D.N.Y. Apr. 17, 2014). Defendants ask the Court to find that corporate liability is not an international norm under Sosa. (Def. Mem. at 20.) Given the Supreme Court’s statements, albeit in dicta, in Kiobel and the reasoning of other courts, both pre and post-Kiobel, the Court is not convinced that Defendants are correct. As this Court has explained, “[n]othing in the ATS or Sosa may plausibly be read to distinguish between private individuals and corporations; indeed, Sosa simply refers to both individuals and entities as ‘private actors.’ ” In re XE Services Alien Tort Litig., 665 F.Supp.2d at 588. Therefore, the Court in In re XE Services found that “claims alleging direct corporate liability for war crimes are cognizable under the ATS.” Id. This Court sees no principled basis for concluding that alleged violations of an international norm against cruel, inhuman and" }, { "docid": "11235929", "title": "", "text": "conditions.” Norex Petroleum Ltd. v. Access Indus., Inc., 631 F.3d 29, 32 (2d Cir.2010) (quoting Morrison v. National Australia Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 2877-78, 177 L.Ed.2d 535 (2010)). Consequently, “absent an express intention by Congress of extraterritorial effect, a statute applies only domestically.” Id. “RICO is silent as to any extraterritorial application.” Id.; see also N.S. Fin. Corp. v. Al-Turki, 100 F.3d 1046, 1051 (2d Cir.1996); Petroleos Mexicanos v. SK Eng’g & Const. Co. Ltd., 2013 WL 3936191, at *2 (S.D.N.Y. July 30, 2013), aff'd, 572 Fed. Appx. 60 (2d Cir.2014). The Second Circuit has accordingly held that “[t]he RICO statutes do not apply extraterritorially.” Petroleos Mexicanos, 2013 WL 3936191, at *2; see also Republic of Iraq v. ABB AG, 920 F.Supp.2d 517, 543 (S.D.N.Y.2013). Similarly, the Second Circuit has rejected the argument that “Congress’s adoption of some RICO predicate statutes with extraterritorial reach indicated a congressional intent that RICO have extraterritorial reach for all its predicates.” European Cmty. v. RJR Nabisco, Inc., 764 F.3d 129, 136 (2d Cir.2014) (citing Norex, 631 F.3d at 33). Thus, courts may not infer from “the extraterritoriality of certain RICO predicates ... the extraterritoriality of RICO as a whole.” Id. Following Norex, some district courts misinterpreted the Circuit’s rejection of the argument that “RICO applies extraterritorially in all of its applications as a ruling that RICO can never have extraterritorial reach in any of its applications.” Id. Cf. European Cmty. v. RJR Nabisco, Inc., 2011 WL 843957, at *5 (E.D.N.Y. Mar. 8, 2011); Cedeno v. Intech Grp., Inc., 733 F.Supp.2d 471, 473 (S.D.N.Y.2010). The Second Circuit has recently clarified that it has not held that the alleged enterprise itself must be domestic in nature. European Cmty. v. RJR Nabisco, Inc., 764 F.3d at 135-36. A requirement that defendants must be “associated with a domestic enterprise in order to sustain RICO liability seems [illogical]. Under that standard, if an enterprise formed in another nation sent emissaries to the United States to engage in domestic ... violations of the various RICO predicate statutes, its participants would be immune from RICO liability merely" }, { "docid": "20823062", "title": "", "text": "giving rise to Plaintiffs’ claims “occurred exclusively on foreign soil.” Al Shimari, 951 F.Supp.2d at 866. Plaintiffs attempt avoid Kiobel by pleading that “AES Corporation is a U.S. Corporation and ‘corporate presence’ in the United States is sufficient for a claim to ‘touch and concern’ the United States” where the corporation profits from and is actively involved in the decision-making of its foreign subsidiaries. (SAC ¶ 12.) The Supreme Court, however, has stated just the opposite — -“it would reach , too far to say that mere corporate presence suffices.” Kiobel, 133 S.Ct. at 1670. Plaintiffs’ allegations that AES profits from and directs the decision-making process of Sonel — mere incidents of shareholder status-do not “touch and concern the territory of the United States” with “sufficient force to displace the presumption against extraterritorial application.” Kiobel, 133 S.Ct. at 1669. Finally, Defendants argue that corporate liability is impermissible under the ATS. Defendants, citing to the Second Circuit in Kiobel, assert that corporate liability is not a recognized norm of customary international law. Kiobel v. Royal Dutch Petroleum, 621 F.3d 111, 149 (2d Cir.2010), aff'd on other grounds, — U.S. —, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013). Plaintiffs cite to several pre-Kiobel cases that recognized corporate liability under the ATS. See Doe v. Exxon Mobil Corp., 654 F.3d 11, 57 (D.C.Cir.2011), vacated, 527 Fed.Appx. 7, 7 (D.C.Cir.2013); Sarei v. Rio Tinto PLC, 671 F.3d 736, 761 (9th Cir.2011) (en banc), cert. granted and judgment vacated, — U.S. —, 133 S.Ct. 1995, 185 L.Ed.2d 863 (2013) (vacating on the basis of Kiobel), dismissed on remand, 122, F.3d 1109 (9th Cir.2013) (affirming the district court’s dismissal with prejudice); Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1021 (7th Cir.2011). Plaintiffs further note that the Supreme Court in Kiobel appeared to contemplate the possibility of corporate liability. Kiobel, 133 S.Ct. at 1669 (“Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.”). The Fourth Circuit has not addressed this issue. Post-Kiobel, several courts have found that corporations may be held liable under the" }, { "docid": "15250277", "title": "", "text": "(1986); see H.R. Rep. No. 71 at 4, U.S.Code Cong. & Admin.News 1786 (Navy “not legally bound” by Posse Comitatus Act). Furthermore, some courts have taken the view that the Posse Comitatus Act imposes no restriction on use of American armed forces abroad, noting that Congress intended to preclude military intervention in domestic civil affairs. See Chandler v. United States, 171 F.2d 921, 936 (1st Cir.1948), cert. denied, 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081 (1949); D’Aquino v. United States, 192 F.2d 338, 351 (9th Cir.1951), cert. denied, 343 U.S. 935, 72 S.Ct. 772, 96 L.Ed. 1343 (1952). And even if these difficulties could be. overcome, a remedial problem would remain, as dismissal of all charges against Yunis might well be an inappropriate remedy if violations of the Posse Comitatus Act were found. See United States v. Cotten, 471 F.2d 744, 749 (9th Cir.) (rejecting dismissal as remedy for alleged violation of Posse Comitatus Act on Ker-Frisbie grounds), cert. denied, 411 U.S. 936, 93 S.Ct. 1913, 36 L.Ed.2d 396 (1973); see also United States v. Hartley, 796 F.2d 112, 115 (5th Cir.1986) (noting courts’ hesitation to adopt exclusionary rule for violations of Posse Comitatus Act); United States v. Roberts, 779 F.2d at 568 (refusing to adopt exclusionary rule). Nor is Yunis helped by 10 U.S.C. § 375 (1988), which requires the Secretary of Defense to issue regulations prohibiting “direct participation” by military personnel in a civilian “search, seizure, arrest, or other similar activity” unless expressly authorized by law. Reliance on this provision faces the same remedial hurdle as direct reliance on the Posse Comitatus Act: Under the Ker-Frisbie doctrine, outright dismissal of the charges against Yunis would not be an appropriate remedy for legal violations relating to his arrest. See United States v. Crews, 445 U.S. at 474, 100 S.Ct. at 1251. Nor would a violation of the regulations at issue amount to a constitutional violation, making application of an exclusionary rule or similar prophylactic measures inappropriate. See United States v. Caceres, 440 U.S. 741, 754-55, 99 S.Ct. 1465, 1472-73, 59 L.Ed.2d 733 (1979). In any event, we" }, { "docid": "20675520", "title": "", "text": "false designation of origin against Allied Domecq. See id. . Def. Mem. at 3. . See Federal Treasury Enter. Sojuzplodoimport v. Spirits Int’l N.V. (“FTE II Summary Order\"), 400 Fed.Appx. 611 (2d Cir.2010) (affirming dismissal of fraud and unjust enrichment claims). See also Federal Treasury Enter. Sojuzplodoimport v. Spirits Int’l N.V. (“FTE II”), 623 F.3d 61 (2d Cir.2010) (remanding remaining trademark, unfair competition, and misappropriation claims). . FTE II. 623 F.3d at 71. . See id. . See Def. Mem. at 4. . See FTE II, 623 F.3d at 71 n. 11. . See Def. Mem. at 4. . See id. See also Federal Treasury Enter. Sojuzplodoimport v. Spirits Int’l B.V. (“FTE III’’), No. 04 Civ. 08510, 2011 WL 4005321, at *3 (S.D.N.Y. Sept. 1, 2011). . See FTE TV, 726 F.3d at 70. . Compl. ¶ 65. . FTE IV. 726 F.3d at 75. . Id. at 84 n. 18. . See Compl. V 66. . Assignment of United States Trademarks, Ex. A to Compl. at 3. . Id. . See Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion to Dismiss (\"Opp. Mem.”) at 16. . Southern New England Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 132 (2d Cir.2010) (quoting Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982)). . Al-Khazraji v. United States, 519 Fed.Appx. 711, 713 (2d Cir.2013) (citing Liranzo v. United States, 690 F.3d 78, 84 (2d Cir.2012)). . Arbaugh v. Y & H Corp., 546 U.S. 500, 501, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). . Southern New England, 624 F.3d at 132 (quoting Carlson v. Principal Fin. Group, 320 F.3d 301, 306 (2d Cir.2003)). . Jordan v. Verizon Corp., 391 Fed.Appx. 10, 12 (2d Cir.2010) (citing APWU v. Potter, 343 F.3d 619, 623 (2d Cir.2003) (quotation marks omitted)). . Burfeindt v. Postupack, 509 Fed.Appx. 65, 67 (2d Cir.2013) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000)). . Freidus v. Barclays Bank PLC, 734 F.3d 132, 137 (2d Cir.2013). . 556 U.S. 662, 679, 129 S.Ct." }, { "docid": "15250276", "title": "", "text": "U.S.C. § 1385 places no restrictions on naval participation in law enforcement operations; an earlier version of the measure would have expressly extended the bill to the Navy, but the final legislation was attached to an Army appropriations bill and its language was accordingly limited to that service. See H.R. Rep. No. 71, Part II, 97th Cong., 1st Sess. 4 (1981), reprinted in 1981 U.S.Code Cong. & Admin.News 1781, 1786 [hereinafter H.R. Rep. No. 71]; Note, The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 Am.Crim.L.Rev. 703, 709-10 (1976). Reference to the Air Force was added in 1956, consistent with reassignment of Army aviation responsibilities to that new branch of the military. See H.R. Rep. No. 71 at 4, 1981 U.S.Code Cong: & Admin.News 1786. Nothing in this history suggests that we should defy the express language of the Posse Comita-tus Act by extending it to the Navy, and we decline to do so. Accord United States v. Roberts, 779 F.2d 565, 567 (9th Cir.), cert. denied, 479 U.S. 839, 107 S.Ct. 142, 93 L.Ed.2d 84 (1986); see H.R. Rep. No. 71 at 4, U.S.Code Cong. & Admin.News 1786 (Navy “not legally bound” by Posse Comitatus Act). Furthermore, some courts have taken the view that the Posse Comitatus Act imposes no restriction on use of American armed forces abroad, noting that Congress intended to preclude military intervention in domestic civil affairs. See Chandler v. United States, 171 F.2d 921, 936 (1st Cir.1948), cert. denied, 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081 (1949); D’Aquino v. United States, 192 F.2d 338, 351 (9th Cir.1951), cert. denied, 343 U.S. 935, 72 S.Ct. 772, 96 L.Ed. 1343 (1952). And even if these difficulties could be. overcome, a remedial problem would remain, as dismissal of all charges against Yunis might well be an inappropriate remedy if violations of the Posse Comitatus Act were found. See United States v. Cotten, 471 F.2d 744, 749 (9th Cir.) (rejecting dismissal as remedy for alleged violation of Posse Comitatus Act on Ker-Frisbie grounds), cert. denied, 411 U.S. 936, 93 S.Ct. 1913, 36 L.Ed.2d 396 (1973); see also United" }, { "docid": "20278124", "title": "", "text": "Dorsey requires retroactive application of the FSA’s mandatory minimums to those sentenced before the Act’s passage.” United States v. Augustine, 712 F.3d 1290 (9th Cir.2013) (collecting cases). Nothing in Dorsey purports to change Supreme Court and Fifth Circuit precedent that § 3582(c)(2) hearings are not plenary re-sentencings. See Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2692, 177 L.Ed.2d 271 (2010) (emphasizing limited nature of § 3582(c)(2) proceedings); United States v. Garcia, 655 F.3d 426, 430-31 (5th Cir.2011), cert. de nied, — U.S. -, 132 S.Ct. 1124, 181 L.Ed.2d 1002 (2012) (same). We thus join our sister circuits in declining to treat a § 3582(c)(2) modification hearing as the equivalent of an original sentencing hearing under Dorsey. See United States v. Meneweather, — Fed.Appx. -, 2013 WL 1277102 (5th Cir.2013) (unpublished) (rejecting defendant’s argument under Dorsey and holding that pre-FSA mandatory minimum applies); United States v. Stone, 473 Fed.Appx. 393, 394 (5th Cir.2012) (unpublished) (same); accord United States v. Speed, — Fed.Appx.-, 2013 WL 1222761 (7th Cir.2013) (unpublished); United States v. Pratt, 515 Fed.Appx. 90, 2013 WL 864464 (3d Cir.2013) (unpublished); United States v. Snow, 509 Fed. Appx. 808, 809, 2013 WL 440719, at *2 (10th Cir.2013) (unpublished) (“The exception outlined in Dorsey applies to post-FSA sentences rather than post-FSA sentence reductions.”); United States v. Berry, 701 F.3d 374, 378 (11th Cir.2012) (“The Supreme Court in Dorsey carefully confined its application of the FSA to pre-Act offenders who were sentenced after the Act’s effective date.”). AFFIRMED. . Just like Kelly, in both Hammond and Augustine, the defendant had originally been sentenced before the FSA’s enactment and received a reduction to the pre-FSA mandatory minimum of 120 months after the FSA’s enactment. Hammond, 712 F.3d at 335; Augustine, 712 F.3d at 1292. . We cite these unpublished cases for their procedural similarity and persuasiveness." }, { "docid": "9476741", "title": "", "text": "unfair competition (Claim 2), federal trademark dilution (Claim 3), state law trademark infringement (Claim 4), state law unfair competition (Claim 5), state law trademark dilution (Claim 6), contributory unfair competition (Claim 8), and contributory federal trademark dilution (Claim 9). . See id. . See FTE V, 2014 WL 4207133, at *6. . See id. . See id. at *9. . See C.P.L.R. § 205 (stating that tolling does not apply where an action “is terminated ... by a voluntary discontinuance”); Drees v. County of Suffolk, No. 06 Civ. 3298, 2009 WL 875530, at *14 (E.D.N.Y. Mar. 30, 2009) (“[T]here is no tolling of the statute of limitations during the. time plaintiffs claim was pending in State Division because of her self-initiated discontinuance of her State Division action for administrative convenience.”). . See Compl. ¶ 39. . See Parks v. ABC, Inc., 341 Fed.Appx. 737, 739 (2d Cir.2009) (citing Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 191 (2d Cir.1996)) (\"New York’s six-year fraud statute of limitations [applies] to ... Lanham Act claim[s].”); Charles Atlas, Ltd. v. DC Comics, Inc., 112 F.Supp.2d 330, 334 (S.D.N.Y.2000) (\"[T]he statute of limitations for violation of New York’s Anti-Dilution Statute, N.Y. Gen. Bus. Law § 360-1 ... is three years.”); Zinter Handling, Inc. v. General Elec. Co., 101 A.D.3d 1333, 956 N.Y.S.2d 626, 630 (3d Dep’t 2012) (finding that state law unfair competition claim is governed by three-year statute of limitations). . Vaad L’Hafotzas Sichos, Inc. v. Kehot Publ’n Soc., 935 F.Supp.2d 595, 602 (E.D.N.Y.2013) (noting that without laches, \"a plaintiff could delay filing suit indefinitely”). Accord Petrella v. Metro-Goldwyn-Mayer, Inc.,-U.S.-, 134 S.Ct. 1962, 1974 n. 15, 188 L.Ed.2d 979 (2014) (\"In contrast to the Copyright Act, the Lanham Act, which governs trademarks, contains no statute of limitations, and expressly provides for defensive use of 'equitable principles, including laches.'”) (quoting 15 U.S.C. § 1115(b)(9)). . Saratoga Vichy Spring Co. v. Lehman, 625 F.2d 1037, 1040 (2d Cir.1980). . See 2/18/11 Order (granting FTE’s motion to amend the SAC “with Defendants’ consent”). . See Def. Mem. at 3. . Id. at 3-4 (citing TAC ¶¶" }, { "docid": "23194965", "title": "", "text": "* * *-” 171 F.2d at page 935. (B) The court had jurisdiction to try appellant notwithstanding she -was brought against her will into the District of Columbia from Germany. The-court was not required to refuse to try her when she was in fact here, even assuming for present pur,poses,that she was brought here unlawfully. Chandler v. United States, supra, and cases cited, 171 F.2d at page 934. See, also, Pettibone v. Nichols, 1906, 203 U.S. 192, 27 S.Ct. 111, 51 L.Ed. 148, 7 Ann.Cas. 1047; In re Johnson, 1896, 167 U.S. 120, 17 S.Ct. 735, 42 L.Ed. 103; Cook v. Hart, 1892, 146 U.S. 183, 13 S.Ct. 40, 36 L.Ed. 934; Mahon v. Justice, 1887, 127 U.S. 700, 8 S.Ct. 1204, 32 L.Ed. 283; Ker v. Illinois, 1886, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421. The Act of June 18, 1878, 20 Stat. 152, 10 U.S.C. § 15 (1946) 10 U.S.C.A. § 15, is invoked. It reads: • “ * * * It shall not be lawful to employ any part of the Army of the United States, as-a.posse comitatus, or otherwise, for the purpose of- executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; * * * and any person willfully violating the provisions of this section - shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding $10,000 or imprisonment not exceeding two years or by both such fine and imprisonment.” As the Chandler case points out, the immediate purpose of the above provision was “to put an end to the use of federal troops to police state elections in the ex-Confederate states where the civil power had been reestablished.” Chandler v. United States, supra, 171 F.2d at page 936. By using the words “posse comitatus” the Congress intended to preclude the Army from assisting local law enforcement officers in carrying out their duties. The use of our Army of Occupation in Germany could not be characterized" }, { "docid": "8165155", "title": "", "text": "to this appeal. Here we assess the constitutionality of SORNA in light of Supreme Court precedent on the nondelegation doctrine. Thus, we decline to deviate from that precedent based on our discussion in Reynolds of the Attorney General's action in issuing rules under the Administrative Procedure Act. . Each of our sister circuits to have considered the issue has concluded that SORNA does not violate the nondelegation doctrine. See, e.g., United States v. Goodwin, 717 F.3d 511, 516-17 (7th Cir.2013), cert. denied, — U.S. -, 134 S.Ct. 334, 187 L.Ed.2d 234 (2013); United States v. Kuehl, 706 F.3d 917, 919-20 (8th Cir.2013); United States v. Parks, 698 F.3d 1, 7-8 (1st Cir.2012), cert. denied, — U.S. -, 133 S.Ct. 2021, 185 L.Ed.2d 889 (2013); United States v. Rogers, 468 Fed.Appx. 359, 362 (4th Cir.2012) (not precedential), cert. denied, -U.S.-, 133 S.Ct. 157, 184 L.Ed.2d 78 (2012); United States v. Felts, 674 F.3d 599, 606 (6th Cir. 2012); United States v. Guzman, 591 F.3d 83, 92-93 (2d Cir.2010), cert. denied, 561 U.S. 1019, 130 S.Ct. 3487, 177 L.Ed.2d 1080 (2010); United States v. Whaley, 577 F.3d 254, 263-64 (5th Cir.2009); United States v. Ambert, 561 F.3d 1202, 1213-14 (11th Cir.2009)." }, { "docid": "11235928", "title": "", "text": "case, the same alleged conduct underlies the violations of both the Travel Act and the FCPA. By presenting these as separate and independent predicate acts, Plaintiffs are impermissibly attempting to double-count this conduct, notwithstanding RICO’s requirement that each predicate act have its own source of conduct. “[I]t is not proper under RICO to charge two predicate acts where on[e] action violates two statutes. A pattern of racketeering activity requires ‘at least two acts of racketeering,’ not ‘at least two statutory offenses.’ ” Watkins v. Smith, 12 Civ. 4635(DLC), 2012 WL 5868395, *4-5 (S.D.N.Y. Nov. 19, 2012), aff'd, 561 Fed. Appx. 46 (2d Cir.2014) (quoting United States v. Kragness, 830 F.2d 842, 860-61 (8th Cir.1987)). Therefore, this Court will review the plausibility of the RICO claim based, upon the Travel Act violations (with the FCPA violations subsumed) and the alleged wire fraud. B. Extraterritoriality of RICO As a general matter, “unless there is the affirmative intention of the Congress clearly expressed to give a statute extraterritorial effect, [courts] must presume it is primarily concerned with domestic conditions.” Norex Petroleum Ltd. v. Access Indus., Inc., 631 F.3d 29, 32 (2d Cir.2010) (quoting Morrison v. National Australia Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 2877-78, 177 L.Ed.2d 535 (2010)). Consequently, “absent an express intention by Congress of extraterritorial effect, a statute applies only domestically.” Id. “RICO is silent as to any extraterritorial application.” Id.; see also N.S. Fin. Corp. v. Al-Turki, 100 F.3d 1046, 1051 (2d Cir.1996); Petroleos Mexicanos v. SK Eng’g & Const. Co. Ltd., 2013 WL 3936191, at *2 (S.D.N.Y. July 30, 2013), aff'd, 572 Fed. Appx. 60 (2d Cir.2014). The Second Circuit has accordingly held that “[t]he RICO statutes do not apply extraterritorially.” Petroleos Mexicanos, 2013 WL 3936191, at *2; see also Republic of Iraq v. ABB AG, 920 F.Supp.2d 517, 543 (S.D.N.Y.2013). Similarly, the Second Circuit has rejected the argument that “Congress’s adoption of some RICO predicate statutes with extraterritorial reach indicated a congressional intent that RICO have extraterritorial reach for all its predicates.” European Cmty. v. RJR Nabisco, Inc., 764 F.3d 129, 136 (2d Cir.2014) (citing Norex," }, { "docid": "9965626", "title": "", "text": "Decl. . Trammo Mem. at 3. . Markstein Decl. ¶ 7; Certificate of Authorization, Ex. 3 to Markstein Decl. . See Markstein Decl. ¶ 8. . Id. ¶9. . Id. ¶ 11. See also Certificate of Dissolution, Ex. 5 to Markstein Decl. . See Markstein Decl. ¶¶ 12-13. . Id. ¶ 14. See also Letter from Municipality, Ex. 6 to Markstein Decl. . See Markstein Decl. ¶ 2; Certification of Incorporation, Ex. 1 to Markstein Decl. . See Markstein Decl. ¶ 5. . Id. ¶ 3. . See id. ¶ 4. . See Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865 (2d Cir.1996). . Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81 (2d Cir.2013) (alteration in original) (quotation marks and citations omitted). . Penguin Grp. (USA) Inc. v. American Buddha, 609 F.3d 30, 35 (2d Cir.2010) (quotation marks and citation omitted). . See A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir.1993). See also In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir.2003) (citation omitted). . Doe v. Delaware State Police, No. 10 Civ. 3003, 939 F.Supp.2d 313, 321, 2013 WL 1431526, at *3 (S.D.N.Y. Apr. 4, 2013) (quotation marks omitted) (citing Jazini v. Nissan Motor Co., 148 F.3d 181, 185 (2d Cir.1998)). . In re Stillwater Capital Partners Inc. Litig., 851 F.Supp.2d 556, 567 (S.D.N.Y.2012) (quoting Schenker v. Assicurazioni Genereali S.p.A., Consol., No. 98 Civ. 9186, 2002 WL 1560788, at *3 (S.D.N.Y. July 15, 2002)). . See Negron-Torres v. Verizon Commc’ns, Inc., 478 F.3d 19, 24 (1st Cir.2007) (quoting L.P.R.A., Tit. 32, App. III, Rule 4.7(a)(1)). . Id. (quotation marks and citations omitted). Accord Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir.1994) (citations omitted) (stating that Rule 4.7 \"extends personal jurisdiction as far as the Federal Constitution permits”). . Gonzalez-Diaz v. Up Stage Inc., No. 11 Civ. 1689, 2012 WL 2579307, at *1 (D.P.R. July 3, 2012). . 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quotation marks and citations omitted). . Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120," }, { "docid": "11944759", "title": "", "text": "the rule is jurisdictional, its violation can be cured by the filing of an amended or supplemental complaint if, as here, the first-filed action is no longer “pending.” See, e.g., United States ex rel. Gadbois v. PharMerica Corp., 809 F.3d 1, 3 (1st Cir. 2015), cert. denied, — U.S. -, 136 S.Ct. 2517, 195 L.Ed.2d 859 (2016); United States ex rel. Brown v. Pfizer, Inc., No. 05-CV-6795 (RBS), 2016 WL 807363 (E.D. Pa. Mar. 1, 2016); United States ex rel Kurnik v. PharMerica Corp., No. 11-CV-1464, 2015 WL 1524402, at *6 (D.S.C. Apr. 2, 2015); Cephalon, 159 F.Supp.3d at 558; United States ex rel. Saldivar v. Fresenius Med. Care Holdings, Inc., 157 F.Supp.3d 1311 (N.D. Ga. 2015). Based on a careful review of the FCA’s text, structure, and. purpose, the Court concludes that Wood and the Government have the better of the argument and that a violation of the first-to-file bal-ean be cured by amending or supplementing the complaint after the first-filed action has been dismissed. As an initial matter, the Court agrees with the D.C. Circuit that the first-to-file bar is not jurisdictional. See Heath, 791 F.3d at 119-20. Admittedly, the majority of Circuits have ruled otherwise. See, e.g., Gadbois, 809 F.3d at 3; United States ex rel. Carter v. Halliburton Co., 710 F.3d 171, 181 (4th Cir. 2013); Walburn, 431 F.3d at 970. In recent years, however, the Supreme Court has stressed the need to bring “some discipline to the use of the term jurisdiction[al],” and has repeatedly held that, absent a “clear statement” from Congress, courts “should treat” procedural restrictions “as nonjuris-dictional.” Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013) (internal quotation marks omitted); see also Gonzalez v. Thaler, 565 U.S. 134, 132 S.Ct, 641, 648, 181 L.Ed.2d 619 (2012); Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 254, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). As the D.C. Circuit observed in Heath, the language of the first-to-file bar “does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.”" }, { "docid": "8165154", "title": "", "text": "the Attorney General. . Thus, it has been said that the nondelegation doctrine \"has had one good year, and 211 bad ones (and counting).” Cass Sun-stein, Nondelegation Canons, 67 U. Chi. L.Rev. 315, 322 (2000). . Chief Justice Hughes retired, and former Associate Justice Harlan Fiske Stone succeeded him as Chief Justice, in 1941. . We do not agree with the argument made by Cooper and the Amicus Curiae that our decision in United States v. Reynolds, 710 F.3d 498 (3d Cir.2013), indicates that SORNA's general policy rationale is constitutionally insufficient. In Reynolds, we determined that the Attorney General failed to show good cause for waiving the Administrative Procedure Act’s notice and comment requirements in the issuance of the interim rule regarding retroactivity of SORNA’s registration requirements in February 2007. In so holding, we noted that the Attorney General’s restatement of SORNA’s public safety rationale by itself did not constitute good cause to ignore the advance comment period required by the Administrative Procedure Act. Id. at 512. Our reasoning in Reynolds is not directly applicable to this appeal. Here we assess the constitutionality of SORNA in light of Supreme Court precedent on the nondelegation doctrine. Thus, we decline to deviate from that precedent based on our discussion in Reynolds of the Attorney General's action in issuing rules under the Administrative Procedure Act. . Each of our sister circuits to have considered the issue has concluded that SORNA does not violate the nondelegation doctrine. See, e.g., United States v. Goodwin, 717 F.3d 511, 516-17 (7th Cir.2013), cert. denied, — U.S. -, 134 S.Ct. 334, 187 L.Ed.2d 234 (2013); United States v. Kuehl, 706 F.3d 917, 919-20 (8th Cir.2013); United States v. Parks, 698 F.3d 1, 7-8 (1st Cir.2012), cert. denied, — U.S. -, 133 S.Ct. 2021, 185 L.Ed.2d 889 (2013); United States v. Rogers, 468 Fed.Appx. 359, 362 (4th Cir.2012) (not precedential), cert. denied, -U.S.-, 133 S.Ct. 157, 184 L.Ed.2d 78 (2012); United States v. Felts, 674 F.3d 599, 606 (6th Cir. 2012); United States v. Guzman, 591 F.3d 83, 92-93 (2d Cir.2010), cert. denied, 561 U.S. 1019, 130 S.Ct. 3487," }, { "docid": "10850989", "title": "", "text": "For these same reasons, appellants argue that the district court erred in refusing to exclude Major Held from the proceedings altogether. We cannot agree. The Posse Comitatus Act provides that whoever “willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall” commit an offense. 18 U.S.C. § 1385. Appellants would have this Court hold that Major Held’s “hybrid position constitutes the very merger of the civil laws and military authority that the Posse Comitatus Act prohibits.” Appellants’ Brief at 99-100. The legislative and judicial history of the Act, however, indicates that its purpose springs from an attempt to end the use of federal troops to police state elections in ex-Confederate states. United States v. Hartley, 486 F.Supp. 1348 (D.C. Fla.1980). In keeping sight of this original purpose, the Eighth Circuit has indicated that military involvement does not constitute a violation of the Act “unless it actually regulates, forbids, or compels some conduct on the part of those claiming relief.” Bissonette v. Haig, 776 F.2d 1384, 1390 (8th Cir.1985), adhered to on rehearing, 788 F.2d 494 (1986) (en banc), cert. granted, 479 U.S. 1083, 107 S.Ct. 1283, 94 L.Ed.2d 141 (1987); United States v. McArthur, 419 F.Supp. 186, 194 (D.N.D.), aff'd sub nom. United States v. Casper, 541 F.2d 1275 (8th Cir.1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1654, 52 L.Ed.2d 362 (1977). It is not, however, necessary for this Court to determine whether the rule set out in Bissonette or some other form of guideline should be applicable to cases brought under the Posse Comitatus Act in this Circuit. Rather, we note that appellants have failed to recognize that the Act expressly provides an exception in “cases and under circumstances expressly authorized by the Constitution or Act of Congress.” Congress, by authorizing the appointment of Special Assistant United States Attorneys and • Assistant United States Attorneys to assist the Attorney General, has authorized Major Held’s appointment. 28 U.S.C. §§ 515, 543. This authorization contains no limitation on the persons whom the Attorney General may appoint, nor does" } ]

[ { "docid": "22652338", "title": "", "text": "requesting that it instruct the trial court to reinstate the jury verdict. The Court of Appeals, without a transcript of the trial proceedings before it, issued a writ of mandamus directing the trial court to restore the jury verdict as to liability but permitting the trial court to proceed with a new trial on damages. Daiflon, Inc. v. Bohanon, 612 F. 2d 1249. Petitioners seek review of this action of the Court of Appeals by their petition for certiorari with this Court. An order granting a new trial is interlocutory in nature and therefore not immediately appealable. The question presented by this petition is therefore whether a litigant may obtain a review of an order concededly not appealable by way of mandamus. If such review were permissible, then the additional question would be presented as to whether the facts in this particular case warrant the issuance of the writ. It is not disputed that the remedy of mandamus is a drastic one, to be invoked only in extraordinary situations. Will v. United States, 389 U. S. 90, 95 (1967); Bankers Life & Cas. Co. v. Holland, 346 U. S. 379, 382-385 (1953); Ex parte Fahey, 332 U. S. 258, 259 (1947). On direct appeal from a final decision, a court of appeals has broad authority to “modify, vacate, set aside or reverse” an order of a district court, and it may direct such further action on remand “as may be just under the circumstances.” 28 U. S. C. § 2106. By contrast, under the All Writs Act, 28 U. S. C. § 1651 (a), courts of appeals may issue a writ of mandamus only when “necessary or appropriate in aid of their respective jurisdic tions.” Although a simple showing of error may suffice to obtain a reversal on direct appeal, to issue a writ of mandamus under such circumstances “would undermine the settled limitations upon the power of an appellate court to review interlocutory orders.” Will v. United States, supra, at 98, n. 6. This Court has recognized that the writ of mandamus “has traditionally been used in the federal" } ]

[ { "docid": "19471900", "title": "", "text": "an action for a writ of mandamus moot where USCIS had already adjudicated the plaintiff's I-130 petition). Accordingly, this claim is moot. II. Declaratory and Injunctive Relief Mahon asks the Court to vacate the denial of her application for lawful permanent resident status. (Compl. at 12.) She also asks the Court to declare that the approval of Mahon's application for permanent resident status in 2003 \"is void ab initio\" and that Mahon's \"denied application for permanent resident status is entitled to a nunc pro tunc decision on its merits.\" (Id. ) Without any citations to supporting case law, Mahon claims that USCIS should have corrected her application to reflect that she was a married daughter of a U.S. citizen-as opposed to an unmarried one-and suggests that USCIS had an obligation to send her a Request For Evidence. (Pl. Mem. (Doc. No. 33) at 10.) In light of these alleged mistakes, Mahon urges the Court to vacate the denial of her second adjustment application. The defendants respond that the Court does not have subject matter jurisdiction to review USCIS's denial because Mahon has not exhausted her administrative remedies available in removal proceedings. The Court agrees with the defendants. Under 8 U.S.C. § 1255, the status of an alien admitted into the United States \"may be adjusted ... to that of an alien lawfully admitted for permanent residence.\" If an alien's application is denied, then \"[n]o appeal lies from the denial of an application ... but the applicant retains the right to renew his or her application in [removal] proceedings.\" 8 C.F.R. § 245.2(a)(5)(ii). Under the doctrine of exhaustion of remedies, \"a party may not seek federal judicial review of an adverse administrative determination until the party has first sought all possible relief within the agency itself.\" Howell v. Immigration and Naturalizations Serv. , 72 F.3d 288, 291 (2d Cir. 1995) (internal quotation marks omitted). \"If a party fails to exhaust administrative remedies, then the court may dismiss the action because subject matter jurisdiction does not exist.\" Id. Nonetheless, there are exceptions. \"Exhaustion of administrative remedies may not be required when: (1)" }, { "docid": "17390014", "title": "", "text": "period of time or that the Baltimore INS District Director has a clear, affirmative, peremptory duty to render an opinion on the I-130 Petition on or before a certain date. Further, it plainly remains within the discretionary judgment of the respondent to determine whether Edgar Asare may be de dared Rebecca Asare’s immediate relative in order to ultimately secure the preferential immigration treatment that goes with that status. Such a decision would necessarily involve an investigation into the validity of the petitioners’ marriage under state and immigration law. I cannot state that the I-130 petition has remained pending in the INS Baltimore District Office an unreasonably long period of time, nor can this Court direct the exercise of respondent’s judgment or discretion on the 1-130 Petition in a particular way. For the foregoing reasons the instant petition for.mandamus relief shall be denied. A separate Order shall be entered reflecting the opinion set out above. ORDER In accordance with the foregoing Memorandum, IT IS this 3rd day of, April, 1998 by the United States District Court for the District of Maryland hereby ORDERED: 1. That the instant complaint for mandamus relief, filed pursuant to 28 U.S.C. § 1361, IS DISMISSED without requiring the issuance of process on the respondent; 2. That the petitioners’ Motion for Temporary Restraining Order (Paper No. 1), IS DENIED; 3. That the Clerk of the Court CLOSE this case; and 4. That the Clerk of the Court MAIL a copy of this Order, together with the foregoing Memorandum, to counsel for the petitioners. . The complaint was accepted for filing although petitioners’ counsel is not a member of the Bar of this Court and did not file the requisite pro hac vice request. . While little information is provided as to Mr. Asare's deportation proceedings, it appears that he was subject to a voluntary departure order by the Immigration Court and overstayed his departure date. He has been detained by the INS for approximately one year and is currently subject to a final order of deportation. . Petitioners argue that Mr. Asare’s forced departure before the “adjudication”" }, { "docid": "17430595", "title": "", "text": "OPINION DUFFY, District Judge: Silva Mamigonian, an Armenian native, filed a Petition for Writ of Habeas Corpus, Injunctive and Declaratory Relief, and Mandamus (“District Court Petition”) against the U.S. Attorney General and officials of the Department of Homeland Security (“DHS”), U.S. Citizenship and Immigration- Services (“USCIS”), and U.S. Immigration and Customs Enforcement (“ICE”) in the Eastern District of California (“District Court”) seeking to enjoin her imminent removal, reverse USCIS’s denial of her first adjustment-of-status application, and order USCIS to approve her then-pending second and third adjustment-of-status applications. After the District Court Petition was filed but before it was dismissed, USCIS denied Ms. Mamigoni-an’s second and third adjustment-of-status applications. The following day, the District Court dismissed the case for lack of jurisdiction. Ms. Mamigonian now appeals the dismissal, and, in the alternative, seeks to convert her appeal into a petition challenging in this court USCIS’s denial of her adjustment-of-status applications pursuant to 8 U.S.C. § 1252(a)(2)(D). For the reasons discussed below, we affirm the District Court, and decline to convert Ms. Mamigonian’s appeal into a petition to this court. We also hold that district courts have jurisdiction to hear cases challenging determinations made on nondiscretionary grounds respecting eligibility for the immigration benefits enumerated in 8 U.S.C. § 1252(a)(2)(B)(i), provided there are no pending removal proceedings in which an alien could apply for such benefits. See Montero-Martinez v. Ashcroft, 277 F.3d 1137 (9th Cir.2002). The District Court did not have jurisdiction over Ms. Mamigoniaris petition because there had been no final agency action by USCIS on her pending adjustment-of-status applications at the time she filed her petition. However, because USCIS has since denied all of Ms. Mamigoniaris adjustment-of-status applications, barring the discovery of new facts, the district court would now have jurisdiction under the Administrative Procedure Act (“APA”), 5 U.S.C. § 704, to hear Ms. Mamigoniaris claim that her application was improperly denied. BACKGROUND Ms. Mamigonian is a native and citizen of Armenia. She arrived in the United States on February 3, 2002, by way of the Los Angeles International Airport. At the airport, Ms. Mamigonian presented a U.S. passport that was" }, { "docid": "23201282", "title": "", "text": "of plaintiff. Perhaps anticipating this result, plaintiff has' sought to invoke two addition al potential sources of subject matter jurisdiction in this case by requesting, in the alternative, (i) a motion to compel or for other relief under the Administrative Procedure Act (APA), 5 U.S.C. § 706 et seq. or (ii) a petition for a writ of mandamus under 28 U.S.C. § 1361 (providing that “[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff’). Significantly, these additional jurisdictional sources are, at best, general grants of subject matter jurisdiction, in sharp contrast to the specific grant of subject matter jurisdiction set forth in 8 U.S.C. § 1447(b). In these circumstances, it is well settled that general grants of jurisdiction may not be relied upon to expand a very specific statute that either grants or limits jurisdiction. It follows therefore that plaintiffs invocation of these general grants of subject matter jurisdiction is to no avail and that this matter is controlled by the specific grant of subject matter jurisdiction set forth in 8 U.S.C. § 1447(b). Moreover, even assuming that the § 1447(b) specific jurisdictional grant does not trump any general statutes, neither of the cited general grants — the APA or mandamus — are applicable in the instant circumstances. The APA permits judicial review of agency action “unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). Yet here, any delay in the processing of plaintiffs naturalization application was not the result of any inaction or unreasonableness on the part of governing agency; instead, it was the re-suit of the legal requirement that CIS await receipt of the FBI’s completed criminal background investigation before acting on plaintiffs application. The mandamus statute, in turn, only provides a remedy to a plaintiff who has exhausted all other avenues of relief and only then if the defendant owes him a clear, non-discretionary duty. See Kerr v. United States District Court, 426 U.S. 394, 402-03, 96 S.Ct. 2119," }, { "docid": "18448646", "title": "", "text": "a prisoner plaintiff to. be present for his civil trial. Two district court opinions have dealt with this question at length. Seybold v. Milwaukee County Sheriff, 276 F.Supp. 484 (E.D.Wisc.1967); Silver v. Dunbar, 264 F.Supp. 177 (S.D.Cal.1967). Both concluded, with emphasis upon the Supreme Court’s Price opinion, that granting of the writ to the prisoner-plaintiff was discretionary; and each declined under the circumstances there involved to order the prisoner’s presence. In Silver, the court indicated that the civil action might be dismissed without prejudice since it viewed the plaintiff’s incarceration as tolling any statute of limitations. In Seybold, the court concluded that further proceedings in the civil action should be stayed during the plaintiff’s incarceration since only in that way could the plaintiff be protected against the statute of limitations. Neither case, it will be noted, allowed the case to be dismissed with prejudice for want of prosecution, as had been approved in Edgerly. This court concludes, in line with the foregoing authorities, that granting of Ball’s petition is a matter of discretion, not of right. Under the circumstances here presented, that petition is due to be denied. The decision to deny Ball’s petition is not based on several matters which might possibly be argued as justifying such a conclusion. Among these would be the following: (1) Failure to exhaust state remedies. It could be contended that Ball should have first applied, as a state prisoner, to the appropriate state court and that, having failed to do so, he is precluded in this court by 28 U.S.C. § 2254. The conclusion should be reached, however, that § 2254, as § 2241(d), is inapplicable to ad testificandum petitions. See discussion supra. Moreover, such an action would presumably be fruitless in view of Alabama’s conclusion that ad testificandum writs for civil cases have been abolished. See footnote 5, supra. Even where two forums exist, the opinion has been expressed that the “trial” court is in a better position to rule upon the petition. See Curran v. U. S., 332 F.Supp. 259 (D.C.Del.1971). (2) Failure to file motion as separate action. It could" }, { "docid": "7694775", "title": "", "text": "Suazos appeal the district court’s dismissal of their claims under the Administrative Procedures Act and the Mandamus Act. On appeal the parties dispute whether 8 U.S.C. § 1254a(f)(4), a subsection of the temporary protected status statute, provides a pathway for Mr. Suazo to obtain lawful permanent resident status pursuant to 8 U.S.C. § 1255, the adjustment of status statute. For the reasons that follow, we reverse the district court’s judgment and remand the case to the US-CIS for further proceedings with respect to the Administrative Procedure Act claim and decline to address the mandamus claim at this stage. Saady Suazo is a Honduran immigrant. He entered the United States without inspection on or about March 15, 1998. He has been in the United States continuously since that time. On September 3, 1999, Suazo was granted Temporary Protected Status (“TPS”) due to his Honduran citizenship. His TPS designation has been continuously renewed since then due to his continued good moral character. As of this writing, his TPS designation has been renewed until July 5, 2018, but could potentially be discontinued anytime without notice. On August 5, 2010, Saady Suazo married Stacey Leigh Suazo. On September 10, 2010, Stacey Suazo filed an Immediate Relative 1-130 Petition on behalf of her husband, Saady Suazo. The same day, Saady Suazo filed an accompanying N185 Application for Adjustment of Status form, seeking to become a Lawful Permanent Resident (“LPR”) of the United States pursuant to 8 U.S.C. § 1255. The Suazos had an interview with immigration officials on November 29, 2010 at the USCIS Cleveland District Office. Mrs. Suazo’s I-130 Petition for Mr. Suazo was approved-providing him with an independent basis to become an LPR. Mr. Suazo’s LPR Application, however, was denied on December 21, 2010. The stated reason for the denial was that Mr. Suazo “entered the United States without inspection” on March 15, 1998. Following the USCIS’s denial of Mr. Suazo’s LPR Application, Mr. and Mrs. Suazo filed a complaint in district court for declaratory judgment under the Administrative Procedures Act (“APA”) and for mandamus relief. The Suazos argued that the USCIS wrongfully" }, { "docid": "17390013", "title": "", "text": "to the petitioner. In order to meet the requirements for mandamus relief, the petitioner must show that he has the clear legal right to the relief sought; that the respondent has a clear legal duty to do the particular act requested; and that no other adequate remedy is available. The failure to show any of these prerequisites defeats a district court’s jurisdiction under § 1361. See National Association of Government Employees v. Federal Labor Relations Authority, 830 F.Supp. 889, 898 (E.D.Va.1993). In addition, mandamus cannot be used to compel the performance of discretionary duties of federal government officers; mandamus will lie only to compel ministerial acts. See Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476, 1480 (D.C.Cir.1995); First Fed. Sav. & Loan Ass’n of Durham v. Baker, 860 F.2d 135, 138 (4th Cir.1988); Plato v. Roudebush, 397 F.Supp. 1295, 1304-05 (D.Md.1975). The undersigned concludes that the petitioners have failed to meet the above established criteria. Petitioners have not shown that they have a legal right to obtain a ruling on the 1-130 Petition within a particular period of time or that the Baltimore INS District Director has a clear, affirmative, peremptory duty to render an opinion on the I-130 Petition on or before a certain date. Further, it plainly remains within the discretionary judgment of the respondent to determine whether Edgar Asare may be de dared Rebecca Asare’s immediate relative in order to ultimately secure the preferential immigration treatment that goes with that status. Such a decision would necessarily involve an investigation into the validity of the petitioners’ marriage under state and immigration law. I cannot state that the I-130 petition has remained pending in the INS Baltimore District Office an unreasonably long period of time, nor can this Court direct the exercise of respondent’s judgment or discretion on the 1-130 Petition in a particular way. For the foregoing reasons the instant petition for.mandamus relief shall be denied. A separate Order shall be entered reflecting the opinion set out above. ORDER In accordance with the foregoing Memorandum, IT IS this 3rd day of, April, 1998 by the United States District Court" }, { "docid": "14002346", "title": "", "text": "that a government employee has committed some misdeed and now owes plaintiff a legal obligation. Cf. Associated Fin. Corp. v. Kemp, 769 F.Supp. 398, 401 (D.D.C.1991) (“Absent a statutory or regulatory mandate, there is no clear ministerial mandate in this context.”). The “similar cases” plaintiff cites, where courts have “found mandamus jurisdiction for plaintiffs invoking an officer of immigration agencies to perform a nondiscretionary duty,” are not in fact similar. (Pl. Opp’n Mem., 5) In Pierre v. McElroy, 200 F.Supp.2d 251 (S.D.N.Y.2001), the Court found that specific legislation placed a duty on the INS to investigate and adjudicate certain petitions for special immigrant juvenile status. See id. at 252-53. As mentioned above, plaintiff provides no statutory ground requiring the BCIS to rescind its denial and reschedule her interview. Jefrey v. INS, 710 F.Supp. 486 (S.D.N.Y.1989) is even less relevant. In that case, the Court did not rule on mandamus jurisdiction. In determining that the plaintiff was entitled to attorney’s fees -under the Equal Access to Justice Act following discontinuance of an action in the nature of mandamus, the Court held simply that the Government’s failure to file any answer to the complaint was not reasonable. Id. at 488-89. Because plaintiffs Complaint does not engage a clear nondiscretionary duty, the Mandamus Act does not confer subject matter jurisdiction on this court. C. The Administrative Procedure Act The Supreme Court has held that the provisions of the the Administrative Procedure Act (“APA”) allowing courts to review agency actions, 5 U.S.C § 701 et seq., do “not afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action.” Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); accord Hsieh, 569 F.2d at 1182. However, “it is common ground that if review is proper under the APA, the District Court [has] jurisdiction under 28 U.S.C. § 1331,” the general federal question statute. Bowen v. Mass., 487 U.S. 879, 891 n. 16, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988). As defendants point out (Def. Mem of Law, 16), the APA does not apply to “agency action ..." }, { "docid": "21596772", "title": "", "text": "informed Robinson that her 1-130 petition had been automatically terminated upon the death of her husband. According to USCIS, Robinson was no longer an “immediate relative” within the meaning of the INA because her husband’s death occurred before the couple had been married for two years. Robinson filed a petition for a writ of mandamus and a complaint for declaratory and injunctive relief in the United States District Court for the District of New Jersey against Michael Chertoff, the Secretary of the Department of Homeland Security, and Emilio Gonzalez, Director, U.S. Citizenship and Immigration Services, requesting that the court order USCIS to reopen her 1-130 petition and 1-485 application and treat her as an “immediate relative” of a United States citizen. The complaint also asked the court “to enjoin USCIS from using the death of Mr. Robinson as a discretionary factor in adjudicating Mrs. Robinson’s 1-485 application.” Robinson v. Chertoff, No. 06-5702, 2007 WL 1412284, at * 1 (D.N.J. May 14, 2007). The District Court denied the Government’s motion to dismiss and granted summary judgment in favor of Robinson. Thereupon, the District Court set aside USCIS’ determination that Robinson was not a spouse, ordered USCIS to process her 1-130 petition and 1-485 application, and granted a declaratory judgment that Robinson “is an immediate relative under 8 U.S.C. § 1151(b)(2)(A)® and for the purposes of adjudicating an 1-130 petition.” App. at 14. The Government appeals. II. Jurisdiction and Standard of Review The District Court had jurisdiction under 28 U.S.C. § 1331 and Section 704 of the APA, 5 U.S.C. § 704, to review the meaning of the term “immediate relative” as it appears in 8 U.S.C. § 1151(b)(2)(A)®. Because this is a “purely legal question and does not implicate agency discretion,” the INA’s jurisdictional bar, 8 U.S.C. § 1252(a)(2)(B)(ii), which precludes judicial review of most discretionary immigration decisions, is not applicable in this case. Pinho v. Gonzales, 432 F.3d 193, 204 (3d Cir.2005). We have jurisdiction under 28 U.S.C. § 1291. “We exercise plenary review of the District Court’s statutory interpretation, but afford deference to a reasonable interpretation adopted by the" }, { "docid": "2736716", "title": "", "text": "OPINION AND ORDER BARBARA B. CRABB, District Judge. The question in this case is whether a remedy in federal district court exists for the failure of immigration officials to decide a noncitizen’s application for adjustment of status from nonimmigrant to permanent resident. Plaintiff Mohammed Saleem, an Indian citizen seeking permanent residence in the United States, contends that jurisdiction for his claim is present under 28 U.S.C. § 1331 and that the government can be compelled to act under either the Mandamus Act, 28 U.S.C. § 1361, or the Administrative Procedures Act, 5 U.S.C. §§ 701-706. Defendants, who are immigration officials, say that under 8 U.S.C. § 1252(a)(2)(B), this court lacks jurisdiction to hear the case and that plaintiff has no right to receive a decision “within any particular time frame.” The case is before the court on plaintiffs motion for summary judgment. Because I conclude that subject matter jurisdiction exists and that defendants have violated the APA by failing to adjudicate plaintiffs application after almost five years have passed, I will grant plaintiffs motion. From the parties’ proposed findings of fact, I find the following facts to be undisputed. UNDISPUTED FACTS A. Plaintiff’s Application Plaintiff Mohammed Saleem is a citizen of India. Defendant Peter Keisler is Acting Attorney General of the United States; defendant Michael Chertoff is Secretary of the Department of Homeland Security; defendant Emilio Gonzales is Director of the United States Citizenship and Immigration Services; defendant Ruth Dorochoff is the district director for Immigration Services in Chicago; defendant Kay Leopold is the officer-in-charge for Immigration Services in Milwaukee. In 1999, plaintiff applied for and received an “H 1-B” visa, which is a nonimmigrant visa that authorizes a temporary stay in the United States “to perform services ... in a specialty occupation.” 8 U.S.C. § 1101(15)(h)(i)(B). In November 2002, after plaintiff received approval for his 1-140 petition (“Immigrant Petition for Alien Worker”), he applied for status as a permanent resident under 8 U.S.C. § 1255, using Form 1-485. Plaintiff has not received a decision on his application. In June 2006, December 2006 and April 2007, plaintiff made inquiries at" }, { "docid": "15619190", "title": "", "text": "resolved. (PI. Br. at 9.) To the extent Plaintiffs seek an order from this Court compelling the US-CIS to adjudicate the 1-751 petition, Plaintiffs’ claims are moot, because the Court “cannot grant any effectual relief whatever” in favor of Plaintiffs with respect to the 1-751 petition. Calderon v. Moore, 518 U.S. 149, 149, 116 S.Ct. 2066, 135 L.Ed.2d 453 (1996) (per curiam) (quoting Mills v. Green, 159 U.S. 651, 16 S.Ct. 132, 40 L.Ed. 293 (1895)). The basic requirement of Article III of the Constitution that there be an actual case or controversy between the parties is lacking here with respect to Plaintiffs 1-751 petition, and this Court therefore does not have jurisdiction over that portion of the action. Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964); New Jersey Turnpike Auth. v. Jersey Central Power and Light, 772 F.2d 25, 30-31 (3d Cir.1985). C. N-400 Application for Naturalization In the Complaint, Plaintiffs assert that this Court has jurisdiction to compel Defendants to act on the subject naturalization application pursuant to the mandamus statute, 28 U.S.C. § 1361. They also assert that this Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1331, through application of the Administrative Procedures Act, 5 U.S.C. § 701, et seq. (“APA”) and the Immigration and Nationality Act, 8 U.S.C. § 1101, et seq. (“INA”). The Court will deal with each claimed jurisdictional basis in turn. 1. Mandamus Jurisdiction Plaintiffs argue that this Court has mandamus jurisdiction pursuant to 28 U.S.C. § 1361. Section 1361 provides that “[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361 (2006). The Supreme Court has described mandamus relief under § 1361 as an “extraordinary remedy” which “will issue only to compel the performance of ‘a clear nondiscretion-ary duty.’ ” Pittston Coal Group v. Sebben, 488 U.S. 105, 121, 109 S.Ct. 414, 102 L.Ed.2d 408 (1988);" }, { "docid": "23470954", "title": "", "text": "claims arise under the Administrative Procedure Act (“APA”); (b) the Mandamus Statute, codified at 28 U.S.C. § 1361, on the ground that her claims seek to compel an officer of an United States agency to perform a duty owed to her. She further asserted that under Firstland Int’l, Inc. v. INS, 377 F.3d 127, 130-31 (2d Cir.2004), the district court had jurisdiction to review her claim that the USCIS attempted to rescind her LPR status without following mandatory statutory and regulatory rescission procedures. The Director moved to dismiss Shar-key’s complaint (a) for lack of subject matter jurisdiction under Fed. R. Civ. Pr. 12(b)(1) or (b) for summary judgment. In support of its motions, the Director provided the district court with copies of Mr. Sharkey’s Petition for Alien Relative (I-130 petition) and Ms. Sharkey’s adjustment of status application (Form 1-485). Based on this evidence, the Director contended that the petitioner, as a matter of law, could not have been granted LPR status, because an approved 1-130 petition is a prerequisite to eligibility for adjustment of status and Sharkey’s 1-130 petition was not approved. In support of this last contention, the director argued that all approved 1-130 petitions have an approval stamp on the “action block,” but no approval stamp appears on the “action block” on Sharkey’s 1-130 petition. Thus, the Director contended that even if the immigration official reviewing Sharkey’s case decided to adjust her status, this decision had no legal effect or validity because Sharkey was not eligible, as a matter of law, for LPR status. The Director urges us “not to spin a grant of [LPR] status out of what was, at most, an INS Officer’s mistake.” In response, Sharkey noted that the action block on the 1-130 petition contained a written inscription that had been crossed-out and made illegible. She contended that the crossed-out writings indicated approval of the petition. In addition, she requested discovery to determine why the 1-551 stamp on her passport and the writings on her 1-130 petition had all been crossed out. She stated that if the administrative record did not contain any more" }, { "docid": "22717018", "title": "", "text": "April. As of the time Madden filed his petition for writ of mandamus, no action had been taken on these motions and no final order had been issued. Although this delay is of concern, it does not yet rise to the level of a denial of due process. We are confident that the district court will issue its decision quickly. In sum, the motion to proceed in forma pauperis will be granted. Because the provisions of 28 U.S.C. § 1915(b) are inapplicable, no docketing fee will be assessed. The petition for writ of mandamus will be denied. This denial is without prejudice to petitioner filing a new petition for writ of mandamus if the district court does not act within 60 days of the date of this order. . On April 26, 1996, the President signed the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. 104-134, 110 Stat. 1321 (1996), Title VIII of which is the Prison Litigation Reform Act of 1996. . 28 U.S.C. § 1651(a), sourced in the Judiciary Act of 1793, provides: The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. Writs of mandamus are also authorized by 28 U.S.C. § 1361, which grants district courts jurisdiction in \"any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” Actions pursuant to § 1361 are often the method for seeking review of an agency action. See 5 U.S.C. § 703. ALthough the same considerations may apply, whether the PLRA applies to § 1361 petitions is not before us, and, therefore, we need not decide It at this time. . A writ of mandamus has traditionally been available to a court of appeals 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 duly to do so.” Will v." }, { "docid": "20078304", "title": "", "text": "the statute “thereby mandates] administrative exhaustion.” Spinelli v. Goss, 446 F.3d 159, 162 (D.C.Cir.2006) (internal citations omitted). This requirement is no “mere technicality,” for it “serves the important purposes of giving the charged party notice of the claim and ‘narrow[ing] the issues for prompt adjudication and decision.’ ” Alexander v. Tomlinson, 507 F.Supp.2d 2, 20 (D.D.C.2007) (quoting Park v. Howard Univ., 71 F.3d 904, 907 (D.C.Cir.1995)). Plaintiff is therefore entitled to review “when the MSPB issues an adverse ‘final decision’ or ‘final order’ concerning” his case. When “the Board grants a petition for review or a cross petition for review, or reopens or dismisses a case, the decision of the Board is final if it disposes of the entire action.” 5 C.F.R. § 1201.113. As plaintiff himself notes, the MSPB is currently reviewing his case (PL’s Opp’n at 26) and has not disposed of the entire action. Therefore, there is no final decision for this Court to review. The Court lacks jurisdiction over the claim and will dismiss it without prejudice. See Howard v. Gutierrez, 474 F.Supp.2d 41, 51 (D.D.C.2007) (“[I]f [plaintiff] had pled the Rehabilitation Act claim in her initial complaint, it would have ... been dismissed without prejudice for failure to exhaust.”). V. APA CLAIMS The Court will grant defendants’ motion to dismiss plaintiffs claim under the APA. “The APA does not provide an independent basis for subject matter jurisdiction.” West v. Jackson, 538 F.Supp.2d 12, 21 (D.D.C.2008) (citing Your Home Visiting Nurse Servs., Inc. v. Shalala, 525 U.S. 449, 456-58, 119 S.Ct. 930, 142 L.Ed.2d 919 (1999) (noting that the Court has “long held” the judicial review provision of the APA is not an independent grant of jurisdiction)). Rather, the APA provides that final agency action is subject to judicial review where there is no other adequate remedy. 5 U.S.C. § 704. Under the Rehabilitation Act, plaintiff has a right to bring an action before the MSPB for defendant’s failure to make a “final determination of a reasonable accommodation.” (Compl. ¶ 63.) This is “adequate to redress discrimination” and so “precludes a remedy under the APA.” West," }, { "docid": "14996005", "title": "", "text": "within USCIS. See 6 U.S.C. § 271(b)(1); 8 C.F.R. § 205.2(a). Whether properly delegated authority was in fact exercised by the proper agency official, when the agency considers the action properly taken, looks like an issue beyond our jurisdiction under § 1252(a)(2)(B)(ii), not a “predicate legal question.” Second, even if we may review the issue, the Abdelwahabs failed to establish that the St. Paul District Office had no authority to exercise the Secretary’s discretion under the DHS regulations then in effect. The regulations provided that any USCIS officer “authorized to approve [an 1-140] petition ... may revoke the approval of that petition.” 8 C.F.R. § 205.2(a) (2004). The regulations further provided that Form 1-140 petitions “must be filed with the Service Center having jurisdiction over the intended place of employment, unless specifically designated for local filing ....” 8 C.F.R. § 204.5(b) (2004). Therefore, the Abdelwahabs argue, only Service Centers may approve or revoke I-140 petitions. We disagree. A regulation requiring that petitions be filed in one office is not a directive that only that office may take final action on a petition. When the 1-140 petition was revoked, District Offices were responsible for administration and enforcement of immigration laws within their assigned geographic areas “unless any such power and authority ... has been exclusively delegated to another immigration official or class of immigration officer.” 8 C.F.R. § 100.2(d)(2)(h) (2004). Because the power to approve or revoke I-140 petitions had not been “exclusively delegated to another immigration official or class of immigration officer,” id., the Abdelwahabs have failed to prove that the St. Paul District Office acted ultra vires. In these circumstances, an extraordinary writ invalidating this otherwise valid agency action may not be granted. 2. Even if judicial review is not foreclosed by § 1252(a)(2)(B)(ii), we would affirm dismissal of the action on the record before the district court. When the district court acted, USCIS had rescinded its marriage fraud finding and granted the I-130 petition. This removed the basis for the 1-140 revocation. Although the revocation was still in effect, a hearing was pending before the IJ on remand" }, { "docid": "14996007", "title": "", "text": "from the BIA, whose prior ruling triggered the grant of 1-130 relief. At this point, there were further administrative remedies to be exhausted, even if those remedies had appeared to be exhausted when the lawsuit was first commenced. 3. Finally, even if the 1-140 revocation issue is not moot, the Abdelwahabs seek an improper judicial remedy. They complain that the 1-140 approval was not reinstated nunc pro tunc. But that is an issue of administrative remedy that must be raised to the agency. If the extent of the remedy is ultimately subject to judicial review — which is highly doubtful because the extent of an administrative remedy is a quintessentially discretionary agency action — it may only be reviewed after the agency has considered the question. Instead, the Abdelwahabs seek an interlocutory declaratory judgment that they hope will persuade the agency to grant further relief, or a judicial order usurping the agency’s remedial authority. In either event, such relief was clearly beyond the district court’s jurisdiction under the Immigration and Nationality Act. The judgment of the district court is affirmed. . The HONORABLE JOAN N. ERICKSEN, United States District Judge for the District of Minnesota. . On March 1, 2003, the Department of Homeland Security absorbed the former Immigration and Naturalization Service. See Kirong v. Mukasey, 529 F.3d 800, 802 n. 1 (8th Cir.2008). USCIS, a division of DHS, is responsible for the adjudication of immigrant visa petitions. See 6 U.S.C. § 271(b). Several actions in this case were taken by INS, while others were taken by USCIS or other DHS offices. . The Immigration and Nationality Act provides that no employment-based petition may be granted after a determination that an alien married \"for the purpose of evading the immigration laws.” 8 U.S.C. § 1154(c). . § 1252(a)(2)(B)(ii) provides in relevant part: \"Notwithstanding any other provision of law ... no court shall have jurisdiction to review ... any ... decision or action of ... the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of ... the Secretary.” By its plain" }, { "docid": "21596771", "title": "", "text": "OPINION OF THE COURT SLOVITER, Circuit Judge. The issue before us is whether an alien married to a United States citizen remains an “immediate relative,” within the meaning of the Immigration and Nationality Act (“INA”), if the couple had been married for less than two years when her citizen spouse died. It is an issue this court has never addressed. I. Factual and Procedural History Osserritta Robinson (“Robinson”), a citizen and national of Jamaica, entered the United States on January 14, 2002, as an non-immigrant visitor on a B-2 visa and married Louis Robinson (“Mr. Robinson”), a United States citizen, in February 2003. In March 2003, Mr. Robinson filed a Petition for Alien Relative (“1-130 petition”) for an immigrant visa on behalf of his wife as an “immediate relative.” At the same time, Robinson filed an 1-485 application to adjust her immigration status to that of a lawful permanent resident (“LPR”). Mr. Robinson died on October 15, 2003, in the Staten Island Ferry accident. On October 15, 2005, the U.S. Citizenship and Immigration Services (“USCIS”) informed Robinson that her 1-130 petition had been automatically terminated upon the death of her husband. According to USCIS, Robinson was no longer an “immediate relative” within the meaning of the INA because her husband’s death occurred before the couple had been married for two years. Robinson filed a petition for a writ of mandamus and a complaint for declaratory and injunctive relief in the United States District Court for the District of New Jersey against Michael Chertoff, the Secretary of the Department of Homeland Security, and Emilio Gonzalez, Director, U.S. Citizenship and Immigration Services, requesting that the court order USCIS to reopen her 1-130 petition and 1-485 application and treat her as an “immediate relative” of a United States citizen. The complaint also asked the court “to enjoin USCIS from using the death of Mr. Robinson as a discretionary factor in adjudicating Mrs. Robinson’s 1-485 application.” Robinson v. Chertoff, No. 06-5702, 2007 WL 1412284, at * 1 (D.N.J. May 14, 2007). The District Court denied the Government’s motion to dismiss and granted summary judgment" }, { "docid": "14996006", "title": "", "text": "may take final action on a petition. When the 1-140 petition was revoked, District Offices were responsible for administration and enforcement of immigration laws within their assigned geographic areas “unless any such power and authority ... has been exclusively delegated to another immigration official or class of immigration officer.” 8 C.F.R. § 100.2(d)(2)(h) (2004). Because the power to approve or revoke I-140 petitions had not been “exclusively delegated to another immigration official or class of immigration officer,” id., the Abdelwahabs have failed to prove that the St. Paul District Office acted ultra vires. In these circumstances, an extraordinary writ invalidating this otherwise valid agency action may not be granted. 2. Even if judicial review is not foreclosed by § 1252(a)(2)(B)(ii), we would affirm dismissal of the action on the record before the district court. When the district court acted, USCIS had rescinded its marriage fraud finding and granted the I-130 petition. This removed the basis for the 1-140 revocation. Although the revocation was still in effect, a hearing was pending before the IJ on remand from the BIA, whose prior ruling triggered the grant of 1-130 relief. At this point, there were further administrative remedies to be exhausted, even if those remedies had appeared to be exhausted when the lawsuit was first commenced. 3. Finally, even if the 1-140 revocation issue is not moot, the Abdelwahabs seek an improper judicial remedy. They complain that the 1-140 approval was not reinstated nunc pro tunc. But that is an issue of administrative remedy that must be raised to the agency. If the extent of the remedy is ultimately subject to judicial review — which is highly doubtful because the extent of an administrative remedy is a quintessentially discretionary agency action — it may only be reviewed after the agency has considered the question. Instead, the Abdelwahabs seek an interlocutory declaratory judgment that they hope will persuade the agency to grant further relief, or a judicial order usurping the agency’s remedial authority. In either event, such relief was clearly beyond the district court’s jurisdiction under the Immigration and Nationality Act. The judgment of" }, { "docid": "23470953", "title": "", "text": "evidence,” a “passport[ ] ... endorsed to show admission for permanent resident status ... will be regarded as establishing lawful admission for permanent residence,” 8 C.F.R. § 103.2(b)(17). At oral argument, the government conceded that absent mistake or fraud, an immigration official places a temporary 1551 stamp on an alien’s passport only if the officer has decided to adjust the alien’s status to a permanent resident. Sharkey argued that when the agency crossed out the 1-551 stamp on her passport and wrote “cancelled with prejudice” above the seal, the agency attempted to rescind her LPR status without following the mandatory statutory and regulatory procedures governing the rescission of LPR status. As a remedy, Sharkey asked the district court to hold unlawful the putative rescission of her LPR status and to order the agency to issue her new documentary evidence of her previously granted LPR status. In her complaint, Sharkey asserted, inter alia, the following jurisdictional bases for her claims: (a) the Federal Question Statute, codified at 28 U.S.C. § 1331, on the ground that her claims arise under the Administrative Procedure Act (“APA”); (b) the Mandamus Statute, codified at 28 U.S.C. § 1361, on the ground that her claims seek to compel an officer of an United States agency to perform a duty owed to her. She further asserted that under Firstland Int’l, Inc. v. INS, 377 F.3d 127, 130-31 (2d Cir.2004), the district court had jurisdiction to review her claim that the USCIS attempted to rescind her LPR status without following mandatory statutory and regulatory rescission procedures. The Director moved to dismiss Shar-key’s complaint (a) for lack of subject matter jurisdiction under Fed. R. Civ. Pr. 12(b)(1) or (b) for summary judgment. In support of its motions, the Director provided the district court with copies of Mr. Sharkey’s Petition for Alien Relative (I-130 petition) and Ms. Sharkey’s adjustment of status application (Form 1-485). Based on this evidence, the Director contended that the petitioner, as a matter of law, could not have been granted LPR status, because an approved 1-130 petition is a prerequisite to eligibility for adjustment of status" }, { "docid": "6394931", "title": "", "text": "do not have jurisdiction to review USCIS’s denial of an 1-130 petition. This appeal followed. II The district court decided it was bound, under the doctrine of collateral estoppel, to abide by the court’s determination in Ginters I that it lacked jurisdiction to review an 1-130 petition. It nevertheless reached the question of jurisdiction substantively by determining it had no jurisdiction to review the denial of an 1-130 because of the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B)(ii). Finally, it determined the claims were procedurally barred for failure to exhaust administrative remedies. Procedural Bar The district court found the Ginters were procedurally barred from raising these issues because they failed to request adjustment of status in connection with Viktors’s removal proceedings. The government claims this failure deprived the court of the opportunity to review these issues in connection with the appeal from the removal order. However, as a matter of procedure, the denial of the 1-130 could not have been raised in a removal proceeding, even had Viktors applied for adjustment of status in that proceeding. An I-130 is not filed with the immigration court but with USCIS. See 8 U.S.C. § 1154 (establishing the framework under which 1-130 petitions are filed). Viktors would not have been eligible for adjustment of status until an 1-130 was granted and a visa number was available for his use. See Matter of Hashmi, 24 I. & N. Dec. 785, 789-90 (BIA 2009) (discussing approval of 1-130 as predicate to consideration for adjustment of status in removal proceedings). Although he could have requested adjustment pending the grant of an 1-130, Rochelle’s 1-130 had already been denied. That decision was appealed to the BIA and affirmed. Raising the adjustment of status issue would have been futile, as the IJ would have had no ability to adjust Viktors’s status without an approved 1-130 petition in place, and an immigration judge has no authority to review USCIS’s decision on an 1-130 petition. The Ginters did not have another vehicle through which they could have requested review of the I-130 petition and their claims are not procedurally barred." } ]

[ { "docid": "13785951", "title": "", "text": "the affidavit therein.” Hillyard, 677 F.2d at 1340; see also United States v. Van Damme, 48 F.3d 461, 466 (9th Cir.1995) (invalidating warrant on these grounds); United States v. Towne, 997 F.2d 537, 544-47 (9th Cir.1993) (reaffirming rule and discussing other cases doing same); Spilotro, 800 F.2d at 967 (hold ing that affidavit could not cure overbroad search warrant because it was not attached to it). The rule requiring affidavits to accompany warrants lacking particularity serves not one, but two aims: “The purpose of the accompanying affidavit clarifying a warrant is both to limit the officer’s discretion and to inform the person subject to the search what items the officers executing the warrant can seize.” United States v. Hayes, 794 F.2d 1348, 1355 (9th Cir.1986) (emphasis added), cert. denied, 479 U.S. 1086, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987); accord Center Art Galleries—Hawaii, Inc. v. United States, 875 F.2d 747, 750 (9th Cir.1989) (attached affidavit “assures that the person being searched has notice of the specific items the officer is entitled to seize” (internal quotation omitted)). Because the agents never served a copy of the affidavit on McGrew, the second goal was entirely unsatisfied here. Neither, in all likelihood, was the first; this court has held expressly that “neither purpose is served” when the affidavit fails to accompany the warrant. Hayes, 794 F.2d at 1355; see also infra note 5. Next, we reject the suggestion the government made in the district court that, in order to protect witnesses, it may simply refuse to produce an affidavit that it contends renders an otherwise general warrant lawful. If the government wishes to keep an affidavit under seal, it must list the items it seeks with particularity in the warrant itself. It is the government’s duty to serve the search warrant on the suspect, and the warrant must contain, either on its face or by attachment, a sufficiently particular description of what is to be seized. Because the government failed to satisfy these requirements, we hold that the search warrant was invalid: it lacked the requisite — indeed, any — particularity. Furthermore, the" } ]

[ { "docid": "13057403", "title": "", "text": "be seized, .... [a]mong the agents who executed the search were the very agents who had prepared the application for the warrant ... [and] they knew the limited scope of the application----The search would thus have been identical in scope, and exactly the same evidence would have been seized, had the warrant complied with the Constitution, which is to say, had the warrant repeated the application’s description of the things to be seized”). The Ninth Circuit, we recognize, has charted a different path. It has held that an affidavit necessary to satisfy the particularity requirement not only must be incorporated into the warrant but also must accompany the warrant at the scene. See, e.g., United States v. McGrew, 122 F.3d 847, 850 (9th Cir.1997). But this disagreement among the circuits at the time of the search, to say nothing of the weight of the authority in our circuit and elsewhere favoring the defendants’ assessment of these constitutional issues, shows that the agents did not violate clearly established law. Wilson v. Layne, 526 U.S. 603, 618, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (noting that when judges “disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy”). Groh does not alter this conclusion. The Court could criticize that search as war-rantless because the warrant contained a “glaring deficiency” upon issuance recognizable by “any reasonable police officer,” 540 U.S. at 564, 124 S.Ct. 1284: Namely, in the section calling for “a description of the ‘person or property’ to be seized,” id. at 554, 124 S.Ct. 1284, the agent typed “single dwelling ... blue in color,” id. at 554, 124 S.Ct. 1284 n. 2. When the magistrate signed the warrant, this description was the only one regarding the items that could be seized. Id. Such a warrant, the Court concluded, was “facial[ly] invalid! ],” id. at 557,124 S.Ct. 1284, and because “the particularity requirement is set forth in the text of the Constitution, no reasonable officer could believe that a warrant that plainly did not comply with that requirement was valid,”" }, { "docid": "11009706", "title": "", "text": "AFFIRMED. . In only one of the fourteen categories of documents did the warrant include a time restriction. . To the extent that it was difficult for the government to create a more particularized warrant, the government may be to blame. Like the district court, we are troubled by \"the government’s decision to refrain from further investigation such as the audit done in [United States v. Michaelian, 803 F.2d 1042 (9th Cir.1986)], and yet rely on the lack of specific information to justify the lack of particularity in the warrant.” . The government does not argue that Gordon's affidavit \"cured\" the overbroad warrant. An affidavit providing more guidance than an over-broad warrant may cure the warrant's over-breadth only if (1) the warrant expressly incorporated the affidavit by reference and (2) the affidavit either is attached physically to the warrant or at least accompanies the warrant while agents execute the search. United States v. Towne, 997 F.2d 537, 544 (9th Cir.1993). Gordon's affidavit met neither of these requirements. Despite this failure, however, the government argues that Gordon's belief that the warrant incorporated the affidavit and his instruction to the executing officers to read the affidavit evidences the agents' good faith. . Although in a footnote in Luk, 859 F.2d at 677 n. 10, we speculated that the failure to have a limiting affidavit present at the time of a search would not necessarily preclude a finding of good faith reliance, such speculation seems inconsistent with the developments in subsequent case law, and may thus not be an accurate reflection of the current status of our law. Towne, Center Art and other cases say that a central purpose underlying the requirement that a limiting affidavit physically accompany the warrant is to ensure that the person whose property is to be searched will be able to examine the document to determine what items may lawfully be seized. See, e.g., Towne, 997 F.2d at 545-46 (\"The purpose of the accompanying affidavit clarifying a warrant is both to limit the officer's discretion and to inform the persons subject to the search what items the officers" }, { "docid": "7876395", "title": "", "text": "or shall leave the copy and receipt at the place from which the property was taken....” The government argues that, under the rule, agents always have the option of serving the warrant on the person or leaving the warrant behind after they have completed the search. We reject this reading of Rule 41(d). As we have frequently explained, one of the major aims of the particularized warrant requirement is to “give notice to the person subject to the search what the officers are entitled to seize.” In the Matter of Seizure of Property Belonging to Talk of the Town Bookstore, Inc., 644 F.2d 1317, 1318 (9th Cir.1981) (quoting United States v. Marti, 421 F.2d 1263, 1268 (2d Cir.1970)). Accord United States v. McGrew, 122 F.3d 847, 850 (9th Cir.1997); United States v. Van Damme, 48 F.3d at 466 (9th Cir.1995) (since affidavit did not accompany warrant “Van Damme could look at no document specifying what the officers could take.”); United States v. Towne, 997 F.2d 537, 545 (9th Cir.1993); United States v. Hayes, 794 F.2d 1348, 1355 (9th Cir.1986) (one purpose of “accompany” requirement is to “inform the person subject to the search what items the officers ... can seize.”), cert. denied, 479 U.S. 1086, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987). Under the government’s reading of Rule 41(d), this essential function of the warrant is defeated. If the warrant is not disclosed until after the completion of the search then the warrant cannot “assure[ ] the individual whose property is searched or seized of the lawful authority of the executing officer ... and the limits of his power to search.” United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), abrogated on other grounds, California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). The individual loses the opportunity to point out to the agents that certain items are beyond the scope of the warrant or even that the agents have targeted the wrong residence. Most importantly, until the search is completed, the individual cannot be certain that the officers are" }, { "docid": "23091982", "title": "", "text": "428 U.S. 543, 566, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (Without a warrant the occupant has “no way of knowing the lawful limits of the inspector’s power to search, and no way of knowing whether the inspector himself is acting under proper authorization.”) (quoting Camara v. Municipal Court, 387 U.S. 523, 532, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)); Steagald v. United States, 451 U.S. 204, 226, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) (Rehnquist, J., dissenting) (search warrants “assure[ ] the occupants that the police officer is present on official business.”). Even the dissenters in Chadwick agreed on this basic function of the search warrant. See Chadwick, 433 U.S. at 20 n. 1, 97 S.Ct. 2476 (Blackmun, Rehnquist, JJ., dissenting) (agreeing that in the search of a home or office, a warrant’s functions include “assuring] the occupants that the officers have legal authority to conduct the search”). In addition to this “assurance” function, this Court has frequently explained that the particularized warrant requirement is also intended “ ‘to give notice to the person subject to the search what the officers are entitled to seize.’ ” In the Matter of Seizure of Property Belonging to Talk of the Town Bookstore, Inc., 644 F.2d 1317, 1318 (9th Cir.1981) (quoting United States v. Marti, 421 F.2d 1263, 1268 (2d Cir.1970)). Accord United States v. McGrew, 122 F.3d 847, 850 (9th Cir.1997); United States v. Van Damme, 48 F.3d at 466 (9th Cir.1995) (since affidavit did not accompany warrant “Van Damme could look at no document specifying what the officers could take.”); United States v. Towne, 997 F.2d 537, 545 (9th Cir.1993); United States v. Hayes, 794 F.2d 1348, 1355 (9th Cir.1986) (one purpose of warrant is to “inform the person subject to the search what items the officers ... can seize.”). In light of these Supreme Court and Ninth Circuit precedents, there can be no doubt that the essential functions of the search warrant include assuring the subject of the search that her privacy is invaded only under a legal warrant and notifying her of the extent of the officer’s authority." }, { "docid": "23091983", "title": "", "text": "subject to the search what the officers are entitled to seize.’ ” In the Matter of Seizure of Property Belonging to Talk of the Town Bookstore, Inc., 644 F.2d 1317, 1318 (9th Cir.1981) (quoting United States v. Marti, 421 F.2d 1263, 1268 (2d Cir.1970)). Accord United States v. McGrew, 122 F.3d 847, 850 (9th Cir.1997); United States v. Van Damme, 48 F.3d at 466 (9th Cir.1995) (since affidavit did not accompany warrant “Van Damme could look at no document specifying what the officers could take.”); United States v. Towne, 997 F.2d 537, 545 (9th Cir.1993); United States v. Hayes, 794 F.2d 1348, 1355 (9th Cir.1986) (one purpose of warrant is to “inform the person subject to the search what items the officers ... can seize.”). In light of these Supreme Court and Ninth Circuit precedents, there can be no doubt that the essential functions of the search warrant include assuring the subject of the search that her privacy is invaded only under a legal warrant and notifying her of the extent of the officer’s authority. The government’s proposed reading of Rule 41(d) ignores these essential functions. If a person is present at the search of her premises, agents are faithful to the “assurance” and “notice” functions of the warrant only if they serve the warrant at the outset of the search. A warrant served after the search is completed cannot timely “provide the property owner with sufficient information to reassure him of the entry’s legality.” Michigan, 436 U.S. at 508, 98 S.Ct. 1942. The search warrant requirement arose from the Founder’s understanding that “[p]ower is a heady thing; and history shows that the police acting on their own cannot be trusted.” McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948). The citizen whose home is invaded without service of a warrant must suffer the invasion while still in doubt of its legality. She must wonder if our Constitutional system has ensured that the “objective mind” of a neutral magistrate has “weighted] the need to invade that privacy in order to enforce the law.” Id." }, { "docid": "13785953", "title": "", "text": "“good faith” exception to the exclusionary rule is not available in this instance. In order to avoid the effect of the exclusionary rule, there must be an “objective reasonable basis for the mistaken belief that the warrant was valid.” United States v. Michaelian, 803 F.2d 1042, 1047 (9th Cir.1986). If the “incorporated” affidavit does not accompany the warrant, agents cannot claim good faith reliance on the affidavit’s contents. United States v. Kow, 58 F.3d 423, 428-30 (9th Cir.1995); United States v. Stubbs, 873 F.2d 210, 212 (9th Cir.1989). Finally, the government does not assert that the introduction of the seized evidence was harmless error, and we thus do not consider that question here. Accordingly, we reverse McGrew’s conviction. REVERSED AND REMANDED. . Because we reverse her conviction on the ground of the erroneously admitted evidence, we do not reach McGrew’s claims of jury misconduct, improper admission of evidence, and sentencing errors. . This court has \"criticized repeatedly the failure to describe in a warrant the specific criminal activity suspected,” United States v. Kow, 58 F.3d 423, 427 (9th Cir. 1995) (collecting cases); we do so again here. . Evidence at trial suggested that at least one officer was unaware of the contents of the affidavit. Sergeant Rivo, who officially confiscated the items from McGrew’s residence, testified that he temporarily set aside the cash and jewelry because he was not sure whether the officers had probable cause to seize them. The affidavit expressly stated, however, that the officers were authorized to seize jewelry and cash. . Other courts also have recognized the importance of the second aim of the particularity requirement. The Supreme Court stated in United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 2482, 53 L.Ed.2d 538 (1977), abrogated on other grounds, California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991), that \"a warrant assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.” Moreover, the Seventh Circuit quoted United States v. Van Damme," }, { "docid": "13785954", "title": "", "text": "423, 427 (9th Cir. 1995) (collecting cases); we do so again here. . Evidence at trial suggested that at least one officer was unaware of the contents of the affidavit. Sergeant Rivo, who officially confiscated the items from McGrew’s residence, testified that he temporarily set aside the cash and jewelry because he was not sure whether the officers had probable cause to seize them. The affidavit expressly stated, however, that the officers were authorized to seize jewelry and cash. . Other courts also have recognized the importance of the second aim of the particularity requirement. The Supreme Court stated in United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 2482, 53 L.Ed.2d 538 (1977), abrogated on other grounds, California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991), that \"a warrant assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.” Moreover, the Seventh Circuit quoted United States v. Van Damme, 48 F.3d 461, 466 (9th Cir.1995), for the proposition that when the particularized application is attached to the warrant, and the officers have it with them during the search, \"the officers can read the list of things to be seized while they are searching, and show the list to the person from whom seizures are made.” United States v. Jones, 54 F.3d 1285, 1290 n. 1 (7th Cir.), cert. denied,-U.S.-, 116 S.Ct. 263, 133 L.Ed.2d 186 (1995). . Although dicta in Towne, supra, suggested that the good faith exception might be available when the agent who drafted the affidavit is present at the search or when the agents confine their search to the scope of the affidavit, Kow subsequently squarely held that such facts, even if true, cannot establish good faith. See Kow, 58 F.3d at 428-30. The agents must either serve the affidavit with the warrant or list with particularity its relevant directives on the warrant itself. Otherwise, the good faith exception is not available because (1) the requirement of attaching affidavits to general" }, { "docid": "7876394", "title": "", "text": "conflict with this purpose. The judicial branch is not required to appoint a United States Attor ney; it is simply empowered to do so. More importantly, the President retains the power to replace the court-appointed United States Attorney with an Attorney appointed by the President and confirmed by the Senate. We now turn to the merits of the appeal. IV. Standard of Review The district court’s decision to suppress is reviewed as a question of law, but the trial court’s factual findings are, of course, reviewed for clear error. See United States v. Kemmish, 120 F.3d 937, 939 (9th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1087, 140 L.Ed.2d 144 (1998). V. The Requirements of Rule 41(d) The government violated F.R.Cr.P. 41(d) by failing to present Gantt with a complete copy of the warrant. Rule 41(d) provides in pertinent part: “[t]he officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken....” The government argues that, under the rule, agents always have the option of serving the warrant on the person or leaving the warrant behind after they have completed the search. We reject this reading of Rule 41(d). As we have frequently explained, one of the major aims of the particularized warrant requirement is to “give notice to the person subject to the search what the officers are entitled to seize.” In the Matter of Seizure of Property Belonging to Talk of the Town Bookstore, Inc., 644 F.2d 1317, 1318 (9th Cir.1981) (quoting United States v. Marti, 421 F.2d 1263, 1268 (2d Cir.1970)). Accord United States v. McGrew, 122 F.3d 847, 850 (9th Cir.1997); United States v. Van Damme, 48 F.3d at 466 (9th Cir.1995) (since affidavit did not accompany warrant “Van Damme could look at no document specifying what the officers could take.”); United States v. Towne, 997 F.2d 537, 545 (9th Cir.1993); United States v. Hayes, 794 F.2d" }, { "docid": "13057402", "title": "", "text": "the warrant and affidavit”) (internal quotation omitted); United States v. Dale, 991 F.2d 819, 848 (D.C.Cir.1993) (“While it is not altogether clear that the affidavit accompanied the warrant at the search, we are satisfied that the precautions taken by the government sufficiently limited the discretion of the executing agents,” including the precaution that the search “was executed by the affiant pursuant to a specific plan”); Colorado v. Staton, 924 P.2d 127, 132 (Colo.1996) (holding that even where an affidavit is necessary to establish the particularity of the warrant “the execution of the search warrant under the supervision and control of the officer who is the affiant obviates the necessity for the affidavit to accompany the warrant when it is executed”); cf. United States v. Stefonek, 179 F.3d 1030, 1033 (7th Cir.1999) (holding that where the affidavit describing the items to be seized was not with the officers at the time of the search, evidence should not be excluded under Leon because the search “conformed to the particular description in the affidavit of the things to be seized, .... [a]mong the agents who executed the search were the very agents who had prepared the application for the warrant ... [and] they knew the limited scope of the application----The search would thus have been identical in scope, and exactly the same evidence would have been seized, had the warrant complied with the Constitution, which is to say, had the warrant repeated the application’s description of the things to be seized”). The Ninth Circuit, we recognize, has charted a different path. It has held that an affidavit necessary to satisfy the particularity requirement not only must be incorporated into the warrant but also must accompany the warrant at the scene. See, e.g., United States v. McGrew, 122 F.3d 847, 850 (9th Cir.1997). But this disagreement among the circuits at the time of the search, to say nothing of the weight of the authority in our circuit and elsewhere favoring the defendants’ assessment of these constitutional issues, shows that the agents did not violate clearly established law. Wilson v. Layne, 526 U.S. 603, 618," }, { "docid": "11009701", "title": "", "text": "items to be seized,” but at least contained a restriction regarding the dates of the business records to be seized. 873 F.2d at 212. Nevertheless, we held that the warrant was so overbroad that agents could not reasonably rely on it. Id. Because the warrant in this case was facially invalid, no reasonable agent could have relied on it “absent some exceptional circumstance.” See Center Art, 875 F.2d at 753. The mere fact that the warrant was reviewed by two AUSA’s and signed by a magistrate does not amount to “exceptional circumstances.” Those exact circumstances were present in Center Art and we found them insufficient to meet the test. As we explained in that ease, when a warrant is facially overbroad, absent specific assurances from an impartial judge or magistrate that the defective warrant is valid despite its overbreadth, a reasonable reliance argument fails. Id.; see also United States v. Crozier, 777 F.2d 1376, 1381-82 (9th Cir.1985); Spilotro, 800 F.2d 959, 968 (9th Cir.1986). The government also reminds us that Gordon believed that his affidavit had been incorporated into the warrant and instructed the executing officers to read the affidavit prior to the search. In United States v. Luk, 859 F.2d 667 (9th Cir.1988), the only case in which we have held officers’ reliance on an overbroad warrant to have been in good faith, we considered as evidence of the officers’ good faith their reliance on an affidavit where the affiant was present and supervising the search, even though the affidavit was not expressly incorporated into the warrant by reference and may not have been in the hands of executing officers during the search. See id. at 677 & n. 10; see also Towne, 997 F.2d at 550, n. 6 (discussing Luk in dictum). Luk provides no support to the government’s good faith claim in this case in light of our more recent decision in Center Art Galleries. In Center Art Galleries, the Government argued that the overbreadth of a facially defective warrant was cured by a more particular affidavit or, alternatively, that executing officers had acted in good faith" }, { "docid": "13785948", "title": "", "text": "brought a copy of the affidavit to the search. What the record clearly shows, however, is that McGrew was present during the search, but neither then nor at any time thereafter did the government show her the affidavit supporting the search. In its brief to the district court “the government freely concedes its agents did not serve a copy of the affidavit on defendant January 10, 1996. It has never done so, it is not required to do so, and for the safety of its cooperating witnesses would never do so.” Prior to trial, McGrew filed a motion to suppress the evidence obtained in the search, arguing that without the affidavit the warrant lacked the particularity required by the Fourth Amendment. The district court denied the motion, stating that the affidavit was sufficiently particular and that no legal authority required executing officers to affix the affidavit to the general warrant. Therefore, the court held, the search and seizure were valid. The government introduced at trial the evidence gathered in the search, and DEA special agents testified extensively based on the seized items. II. Analysis The district court’s denial of McGrow’s motion to suppress contradicts a long line of this circuit’s clearly established Fourth Amendment precedent. The district court erred in failing to suppress the evidence that the government agents obtained in the search of McGrow's residence. The Fourth Amendment dictates that a search warrant must be sufficiently particular and not overbroad. See, e.g., Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2747, 49 L.Ed.2d 627 (1976); United States v. Spilotro, 800 F.2d 959, 963 (9th Cir.1986). The particularity requirement safeguards the right to be free from unbounded, general searches. United States v. Hillyard, 677 F.2d 1336, 1339 (9th Cir.1982). Thus, to pass constitutional muster, a warrant “must be specific enough to enable the person conducting the search reasonably to identify the things authorized to be seized.” Spilotro, 800 F.2d at 963. Here, the search warrant contained absolutely no description of the types of items sought, or even of the types of crimes for which it sought evidence. The" }, { "docid": "10071079", "title": "", "text": "Id. at 848. However, agents never served McGrew with a copy of the affidavit, either during or after the search. Id. at 849. According to the “well settled law of this circuit,” a warrant “may be construed with reference to the affidavit ... if (1) the affidavit accompanies the warrant, and (2) the warrant uses suitable words of reference which incorporate the affidavit.” Id. (quoting United States v. Hillyard, 677 F.2d 1336, 1340 (9th Cir.1982) (internal quotation marks omitted)). When officers fail to attach the affidavit to a general warrant, the search is rendered illegal because the warrant neither limits their discretion nor gives the homeowner the required information. Id. at 850. Appellees concede that the warrant here was facially defective because it provided no description of the evidence sought. It also didn’t refer to or incorporate the application or affidavit. Groh attached no documents to the warrant when he served it on Mrs. Ramirez. Nonetheless, appellees argue that McGrew does not control and that the search was lawful because Groh’s words remedied the defect. According to Groh, he spoke at length with the Ramirezes during the search — Mrs. Ramirez in person, Mr. Ramirez on the telephone — and listed all of the items sought. However, the Ramirezes claim that Groh spoke only to Mrs. Ramirez, and told her simply that the officers sought “an explosive device in a box.” This factual dispute is immaterial: Groh could not have cured the flaw because he lacked the authority to amend the warrant. As a law enforcement officer, Groh was empowered only to execute the warrant. Therefore, he could no more have supplemented it verbally than he could have amended it by crossing out the terms approved by the magistrate and scribbling new ones in the margins. The only way Groh could have remedied the defect in the warrant was to ask a magistrate to issue a corrected version. McGrew therefore controls and the warrant failed to comply with the Fourth Amendment. Our holding is consistent with the goals of the particularity requirement, which went unfulfilled here despite Groh’s al leged" }, { "docid": "23091950", "title": "", "text": "Chadwick, 433 U.S. at 20 n. 1, 97 S.Ct. 2476 (Blaekmun, Rehnquist, JJ., dissenting) (agreeing that in the search of a home or office, a warrant’s functions include “assurfing] the occupants that the officers have legal authority to conduct the search”). In addition to this “assurance” function, this Court has frequently explained that the particularized warrant requirement is also intended “ ‘to give notice to the person subject to the search what the officers are entitled to seize.’ ” In the Matter of Seizure of Property Belonging to Talk of the Town Bookstore, Inc., 644 F.2d 1317, 1318 (9th Cir.1981) (quoting United States v. Marti, 421 F.2d 1263, 1268 (2d Cir.1970)). Accord United States v. McGrew, 122 F.3d 847, 850 (9th Cir.1997); United States v. Van Damme, 48 F.3d at 466 (9th Cir.1995) (since affidavit did not accompany warrant “Van Damme could look at no document specifying what the officers could take.”); United States v. Towne, 997 F.2d 537, 545 (9th Cir.1993); United States v. Hayes, 794 F.2d 1348, 1355 (9th Cir.1986) (one purpose of warrant is to “inform the person subject to the search what items the officers ... can seize.”). In light of these Supreme Court and Ninth Circuit precedents, there can be no doubt that the essential functions of the search warrant include assuring the subject of the search that her privacy is invaded only under a legal warrant and notifying her of the extent of the officer’s authority. The government’s proposed reading of Rule 41(d) ignores these essential functions. If a person is present at the search of her premises, agents are faithful to the “assurance” and “notice” functions of the warrant only if they serve the warrant at the outset of the search. A warrant served after the search is completed cannot timely “provide the property owner with sufficient information to reassure him of the entry’s legality.” Michigan, 436 U.S. at 508, 98 S.Ct. 1942. The search warrant requirement arose from the Founder’s understanding that “[pjower is a heady thing; and history shows that the police acting on their own cannot be trusted.” McDonald v." }, { "docid": "21457309", "title": "", "text": "of the warrant or their good faith. Thus, although the affidavit cannot be used to cure the warrant’s overbreadth, the possession of the affidavit when the officers conduct their search, for example, is evidence of good faith under Leon. See United States v. Crozier, 777 F.2d 1376, 1382 (9th Cir.1985). Under Leon, the good faith exception to the exclusionary rule is inapplicable when the warrant is “so facially overbroad as to preclude reasonable reliance by the executing officers,” United States v. Michaelian, 803 F.2d 1042, 1046 (9th Cir.1986), or when the officers do not act in good faith. United States v. Spilotro, 800 F.2d 959, 968 (9th Cir.1986). The inquiry is case-by-case. “Suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.” Leon, 468 U.S. at 918, 104 S.Ct. at 3418. The twenty-two page affidavit prepared by Agent Koplik with Assistant United States Attorney Rossbacher’s assistance related the results of an extensive investigation. It provided the particularity that the warrant lacked: dates and names of manufacturers that identified the export transactions for which the government had probable cause to believe a violation of law had occurred. Therefore, had the agents read the warrant in conjunction with the affidavit, the search would have been limited to items relating to those transactions with respect to which there existed probable cause to seize. In this case, the affidavit did act as this sort of limit on the search. Agent Bam-mer, who was specifically authorized to execute the warrant, read Agent Koplik’s affidavit prior to the search; at the briefing immediately prior to the warrant’s execution, Koplik apprised Bammer and the two other agents who assisted in the search of the particular items to seize; Koplik was present at the premises and advised the agents concerning what items were properly within the scope of the search; and the agents specifically relied on the affidavit in determining at the scene what items were properly within the scope of the search. The absence" }, { "docid": "23091949", "title": "", "text": "9, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), abrogated on other grounds, California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). See also Michigan v. Tyler, 436 U.S. 499, 508, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (“a major function of the warrant is to provide the property owner with sufficient information to reassure him of the entry’s legality”); United States v. Martinez-Fuerte, 428 U.S. 543, 566, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (Without a warrant the occupant has “no way of knowing the lawful limits of the inspector’s power to search, and no way of knowing whether the inspector himself is acting under proper authorization.”) (quoting Camara v. Municipal Court, 387 U.S. 523, 532, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)); Steagald v. United States, 451 U.S. 204, 226, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) (Rehnquist, J., dissenting) (search warrants “assure[ ] the occupants that the police officer is present on official business.”). Even the dissenters in Chadmck agreed on this basic function of the search warrant. See Chadwick, 433 U.S. at 20 n. 1, 97 S.Ct. 2476 (Blaekmun, Rehnquist, JJ., dissenting) (agreeing that in the search of a home or office, a warrant’s functions include “assurfing] the occupants that the officers have legal authority to conduct the search”). In addition to this “assurance” function, this Court has frequently explained that the particularized warrant requirement is also intended “ ‘to give notice to the person subject to the search what the officers are entitled to seize.’ ” In the Matter of Seizure of Property Belonging to Talk of the Town Bookstore, Inc., 644 F.2d 1317, 1318 (9th Cir.1981) (quoting United States v. Marti, 421 F.2d 1263, 1268 (2d Cir.1970)). Accord United States v. McGrew, 122 F.3d 847, 850 (9th Cir.1997); United States v. Van Damme, 48 F.3d at 466 (9th Cir.1995) (since affidavit did not accompany warrant “Van Damme could look at no document specifying what the officers could take.”); United States v. Towne, 997 F.2d 537, 545 (9th Cir.1993); United States v. Hayes, 794 F.2d 1348, 1355 (9th Cir.1986) (one purpose of" }, { "docid": "10071078", "title": "", "text": "well. The Ramirezes appeal. II A. Was there a Fourth Amendment violation? To satisfy the Fourth Amendment, a search warrant must describe with particularity the place to be searched and the items to be seized. U.S. Const, amend. IV; United States v. Sayakhom, 186 F.3d 928, 934. (9th Cir.1999). The particularity requirement protects the individual from a “general, exploratory rummaging in [his] belongings.” United States v. Lacy, 119 F.3d 742, 746 n. 7 (9th Cir.1997) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). It does so both by “limit[ing] the officer’s discretion” and by “inform[ing] the person subject to the search what items the officers executing the warrant can seize.” United States v. McGrew, 122 F.3d 847, 850 (9th Cir.1997) (emphasis removed). We addressed the particularity requirement in McGrew, where federal agents searched the home of a suspected drug trafficker. The warrant itself did not specify the evidence sought. Rather, in the space provided for that information, it referred to the “attached affidavit which is incorporated herein.” Id. at 848. However, agents never served McGrew with a copy of the affidavit, either during or after the search. Id. at 849. According to the “well settled law of this circuit,” a warrant “may be construed with reference to the affidavit ... if (1) the affidavit accompanies the warrant, and (2) the warrant uses suitable words of reference which incorporate the affidavit.” Id. (quoting United States v. Hillyard, 677 F.2d 1336, 1340 (9th Cir.1982) (internal quotation marks omitted)). When officers fail to attach the affidavit to a general warrant, the search is rendered illegal because the warrant neither limits their discretion nor gives the homeowner the required information. Id. at 850. Appellees concede that the warrant here was facially defective because it provided no description of the evidence sought. It also didn’t refer to or incorporate the application or affidavit. Groh attached no documents to the warrant when he served it on Mrs. Ramirez. Nonetheless, appellees argue that McGrew does not control and that the search was lawful because Groh’s words remedied the defect." }, { "docid": "13785949", "title": "", "text": "testified extensively based on the seized items. II. Analysis The district court’s denial of McGrow’s motion to suppress contradicts a long line of this circuit’s clearly established Fourth Amendment precedent. The district court erred in failing to suppress the evidence that the government agents obtained in the search of McGrow's residence. The Fourth Amendment dictates that a search warrant must be sufficiently particular and not overbroad. See, e.g., Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2747, 49 L.Ed.2d 627 (1976); United States v. Spilotro, 800 F.2d 959, 963 (9th Cir.1986). The particularity requirement safeguards the right to be free from unbounded, general searches. United States v. Hillyard, 677 F.2d 1336, 1339 (9th Cir.1982). Thus, to pass constitutional muster, a warrant “must be specific enough to enable the person conducting the search reasonably to identify the things authorized to be seized.” Spilotro, 800 F.2d at 963. Here, the search warrant contained absolutely no description of the types of items sought, or even of the types of crimes for which it sought evidence. The warrant only referred to an “attached affidavit which is incorporated herein.” The government, however, has offered no evidence that the affidavit or any copies were ever attached to the warrant or were present at the time of the search of McGrow’s home, even though agent Andersen, the affiant, was present at the search. Moreover, while the affidavit was expressly “incorporated” into the search warrant, the government openly admits that its agents never served a copy of the affidavit on McGrew. The government argues that so long as its agents are aware of the contents of the affidavit listing the items they may seize, the Fourth Amendment’s particularity requirement is satisfied. Even assuming that the agents were aware of the contents of the affidavit—which is highly questionable —this argument is incorrect. The well settled law of this circuit states that a “search warrant may be construed with reference to the affidavit for purposes of satisfying the particularity requirement if (1) the affidavit accompanies the warrant, and (2) the warrant uses suitable words of reference which incorporate" }, { "docid": "5282566", "title": "", "text": "has occurred. When the officer who requests authorization for the search, the magistrate who grants such authorization, and the officers who execute the search expressly rely upon a given set of papers containing a given series of words, they identify that set of papers and that series of words as the proof that proper precautions were taken to prevent an unreasonably invasive search. United States v. Towne, 997 F.2d 537, 548 (9th Cir.1993). It is a “well-settled principle that \"a warrant’s overbreadth can be cured by an accompanying affidavit that more particularly describes the items to be seized.” Id. at 544 (citing United States v. Luk, 859 F.2d 667, 676 (9th Cir.1988)). An affidavit is “part of a warrant, and therefore potentially curative of any defects, ... if (1) the warrant expressly incorporated the affidavit by reference and (2) the affidavit either is attached physically to the warrant or at least accompanies the warrant while agents execute the search.” United States v. SDI Future Health Inc., 568 F.3d 684, 699 (9th Cir.2009). “When we say that a warrant may be so facially deficient that it precludes reasonable reliance, what we mean is that ‘[ojfficers poised to conduct a search should be able to ascertain that such a warrant fails to offer sufficiently detailed instruction and instead leaves them guessing as to their task.’ ” Towne, 997 F.2d at 549 (quoting Ortiz v. Van Auken, 887 F.2d 1366, 1370 (9th Cir.1989)). The majority mischaracterizes the warrant as underinclusive and then determines that an affidavit cannot be read to broaden the scope of the warrant. However, if these documents are correctly read, this argument fails. The warrant in this case is not underinclusive. It broadly allows for the collection of all evidence related to the preparation of a false tax return. It is the affidavit that then zeros in on the evidence the investigation had already uncovered related to Al-Haramain and its connections to funding the mujahideen’s activities in Chechnya. The affidavit appropriately narrowed the search to these activities, the underlying reason why Seda falsified the Al-Haramain-US’s tax return. Just as described" }, { "docid": "23357603", "title": "", "text": "Fourth Amendment requires that warrants describe with particularity “the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. The description must enable “the person conducting the search reasonably to identify the things authorized to be seized.” United States v. Spilotro, 800 F.2d 959, 963 (9th Cir.1986). The particularity requirement “is aimed at protecting against general searches and insures that nothing is left to the discretion of the executing officer.” United States v. Robertson, 833 F.2d 777, 783 n. 4 (9th Cir.1987). Moreover, a warrant that describes with particularity what is to be searched and seized gives assurance and “notice to the person subject to the search what the officers are entitled to seize.” United States v. Gantt, 194 F.3d 987, 1001 (9th Cir.1999). In the present case, the warrant was, on its face, sufficiently particular in describing the places to be searched and the items to be seized. Defendant does not argue that the warrant, on its face, was too general. Instead, he argues that the warrant violated the “particularity” requirement of the Fourth Amendment because the police did not leave a copy of the warrant with his wife when they executed it. Defendant Zepeda-Medrano was incarcerated at the time of the search. Defendant cites United States v. McGrew, 122 F.3d 847 (9th Cir.1997), in support of his claim. McGrew involved a federal warrant that incorporated by reference a supporting affidavit. The agents gave the defendant a copy of the bare and uninformative warrant during the search, but failed to provide the incorporated affidavit. This court held that the search was illegal because “[i]t is the government’s duty to serve the search warrant on the suspect, and the warrant must contain, either on its face or by attachment, a sufficiently particular description of what is to be seized.” Id. at 850. Whatever the potential application of McGrew to a state warrant, Defendant Zepeda-Medrano lacks standing to assert the claim. As noted, the particularity requirement helps to limit the discretion of the searching officer and provides “the property owner assurance and notice during the" }, { "docid": "13785952", "title": "", "text": "omitted)). Because the agents never served a copy of the affidavit on McGrew, the second goal was entirely unsatisfied here. Neither, in all likelihood, was the first; this court has held expressly that “neither purpose is served” when the affidavit fails to accompany the warrant. Hayes, 794 F.2d at 1355; see also infra note 5. Next, we reject the suggestion the government made in the district court that, in order to protect witnesses, it may simply refuse to produce an affidavit that it contends renders an otherwise general warrant lawful. If the government wishes to keep an affidavit under seal, it must list the items it seeks with particularity in the warrant itself. It is the government’s duty to serve the search warrant on the suspect, and the warrant must contain, either on its face or by attachment, a sufficiently particular description of what is to be seized. Because the government failed to satisfy these requirements, we hold that the search warrant was invalid: it lacked the requisite — indeed, any — particularity. Furthermore, the “good faith” exception to the exclusionary rule is not available in this instance. In order to avoid the effect of the exclusionary rule, there must be an “objective reasonable basis for the mistaken belief that the warrant was valid.” United States v. Michaelian, 803 F.2d 1042, 1047 (9th Cir.1986). If the “incorporated” affidavit does not accompany the warrant, agents cannot claim good faith reliance on the affidavit’s contents. United States v. Kow, 58 F.3d 423, 428-30 (9th Cir.1995); United States v. Stubbs, 873 F.2d 210, 212 (9th Cir.1989). Finally, the government does not assert that the introduction of the seized evidence was harmless error, and we thus do not consider that question here. Accordingly, we reverse McGrew’s conviction. REVERSED AND REMANDED. . Because we reverse her conviction on the ground of the erroneously admitted evidence, we do not reach McGrew’s claims of jury misconduct, improper admission of evidence, and sentencing errors. . This court has \"criticized repeatedly the failure to describe in a warrant the specific criminal activity suspected,” United States v. Kow, 58 F.3d" } ]

[ { "docid": "22239612", "title": "", "text": "is and what is not interstate commerce the appellees and the Administrator of the Wage and Hour Division, in his brief as amicus curiae, lay stress upon the language contained in many decisions under the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. These cases are not altogether applicable for, as pointed out by the Supreme Court, the “critical words” of the National Labor Relations Act are “affecting commerce”. Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U.S. 453, 467, 58 S.Ct. 656, 82 L.Ed. 954. Sections 6(a) and 7(a) of the Fair Labor Standards Act do not employ these “critical words”, but instead provide that employers shall pay specified minimum wages and overtime to each of their employees “who is engaged in commerce or in the production of goods for commerce”. These words make application of the minimum wage and maximum hour provisions of the act dependent upon the nature of the work performed by the particular employee, and not upon the fact that the business of the employer may in some manner “affect commerce”. This interpretation would appear to be the one intended by Congress when it enacted the law. In the case of Jewell Tea Company v. Williams, 118 F.2d 202, 206, the Tenth Circuit Court of Appeals, in interpreting the act, alluded to the legislative history of the statute, and pointed out that as originally passed by the Senate it was limited to employees engaged in or producing goods for interstate commerce; that the House, by amendment, broadened the coverage by requiring time and a half for all employees of an employer “engaged in commerce in an industry affecting commerce”; that in the conference draft of the bill the Senate refused to accede to the House amendment, and the test of coverage contained in the original Senate bill was restored by applying the act to employees '‘engaged in commerce or in the production of goods for commerce”; and that Senator Pepper, a member of the conference committee, in discussing the terms of the act before the Senate said, “I want it" } ]

[ { "docid": "8967905", "title": "", "text": "that such delays break the continuity of the interstate journey and cause the freight to come to rest within the state. The stoppage of the cotton at Houston had no more effect than this. We consider that what is shown to have been done at Houston to prepare the cotton for further shipment and the appropriating of a single shipment from the interior to more than one order for export or for further shipment in interstate commerce did not deprive the movement within the state of its interstate character. The following authorities sustain this conclusion: Coe v. Errol, 116 U.S. 517, 6 S.Ct. 475, 29 L.Ed. 715; Swift & Co. v. U. S., 196 U.S. 375, 25 S.Ct. 276, 49 L.Ed. 518; So. Pac. Terminal Co. v. I. C. C., 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310; Texas & N. O. R. R. Co. v. Sabine Tram Co., 227 U. S. 111, 33 S.Ct. 229, 57 L.Ed. 442; R. R. Comm. of La. v. T. & P. Ry. Co., 229 U. S. 336, 33 S.Ct. 837, 57 L.Ed. 1215; Stafford v. Wallace, 258 U. S. 495, 42 S.Ct. 397, 66 L.Ed. 735, 23 A.L.R. 229; Board of Trade of Chicago v. Olsen, 262 U.S. 1, 43 S.Ct. 470, 67 L.Ed. 839. The judgment appealed from is affirmed." }, { "docid": "13291513", "title": "", "text": "States v. One 1947 Oldsmobile Sedan, 104 F.Supp. 159, 161 (D.N.J.1952); Warner v. United States, 301 F.2d 327, 157 Ct.Cl. 1 (1962); C. Sands, Statutes and Statutory Construction §§ 58-60 (1974), and cases cited therein. . See, e. g., United States v. Standard Oil Co., 384 U.S. 224, 230, 234-37, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966) (Harlan, J., dissenting). . See Brief of Appellee Hess Corp. at 4 (Hercules cargo worth $20 million). . See, e. g., Reply Brief for Appellant American Maritime Association at 6-9. . The court also must reject appellants’ argument, urged at length, that the present case is governed by domestic commerce clause cases. See, e. g., Brief for Appellant American Maritime Association at 25-32; Brief for Appellant Shipbuilders Council at 32-33. To support the contention that the refining of oil at St. Croix fails to interrupt the flow of that oil between points in the United States for purposes of the Jones Act, appellants cite the venerable line of early twentieth century cases which sustained congressional power to regulate allegedly intrastate economic activity because of the flow of subject goods in inter-state commerce. See, e. g., Bd. of Trade of the City of Chicago v. Olsen, 262 U.S. 1, 43 S.Ct. 470, 67 L.Ed. 839 (1922) (federal regulation of grain traders upheld despite interruption of transit of grain within state for storing and processing); Stafford v. Wallace, 258 U.S. 495, 42 S.Ct. 397, 66 L.Ed. 738 (1922) (acceptable federal regulation of cattle slaughtered in Chicago before reshipment of meat products to the East); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 526, 31 S.Ct. 279, 55 L.Ed. 310 (1911) (food stuffs of local manufacturers subject to federal regulation because of sale for export);' Swift & Co. v. United States, 196 U.S. 375, 25 S.Ct. 276, 49 L.Ed. 518 (1905). But in citing such authority, appellants misconceive the issue of the present case. The issue here is not whether Congress has the power to regulate a particular flow of commerce, but whether it has exercised that power in a particular case. The fact that" }, { "docid": "16692126", "title": "", "text": "the Act has a generality and adaptability comparable to that found to be desirable in constitutional provisions.” On the fluctuating judicial construction regarding the “rule of reason” interpolation see Robert H. Jackson and Edward Dumbauld “Monopolies and the Courts,” 86 U. of Pa.L.R. (January, 1938), 231, 242-49; and Continental T. V. Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49-59, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). . Italics supplied. On the following page appellants recognize that conspiracies violating § 1 of the Sherman Act may either “affect commerce” or occur “in commerce.” The second class are described as “in the flow” of commerce. On “flow” see Chicago Bd. of Trade v. Olsen, 262 U.S. 1, 35, 43 S.Ct. 470, 67 L.Ed. 839 (1923); Stafford v. Wallace, 258 U.S. 495, 515-21, 42 S.Ct. 397, 66 L.Ed. 735 (1922); and Swift & Co. v. U. S., 196 U.S. 375, 398-400, 25 S.Ct. 276, 49 L.Ed. 518 (1906). The jury was instructed on both theories. See Government’s Instruction No. 18 and Defendant’s Instruction No. 53 which were given by the Court without modification. . Unlike the Robinson-Patman Act, see Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 194-95, 95 S.Ct. 392, 398, 42 L.Ed.2d 378 (1974). . The quoted language is from the case cited in note 3, supra. The Court there goes on to quote the colorful aphorism of Justice Robert H. Jackson, “If it is interstate commerce that feels the pinch it does not matter how local the operation which applies the squeeze.” U. S. v. Women’s Sportswear Mfrs. Assn., 336 U.S. 460, 464, 69 S.Ct. 714, 716, 93 L.Ed. 805 (1949). . The Court held that the necessity of a title examination to assure a valid lien for interstate lenders demonstrated “that interstate commerce has been sufficiently affected.” 421 U.S. at 785, 95 S.Ct. at 2012 (italics supplied). . 210 F.2d at 740; Evans v. S. S. Kresge Co., 394 F.Supp. 817, 830, 837 (W.D.Pa.1975). . 247 U.S. at 271, 38 S.Ct. at 531. The case was overruled, and the Holmes reasoning adopted, in U. S. v." }, { "docid": "23318523", "title": "", "text": "Southern Dairies, D.C., 42 F.Supp. 664, 667. Plaintiff insists, however, that those who moVe goods from the platform into the warehouse, those who store them in the proper places, those who take care of them there, those who deliver them to the Illinois stores, and those who do the clerical work involved in such storage and delivery are within the Act. Plaintiff argues that all these activities are merely part of the “stream of commerce” from the place of origin to the retail stores. But we are not dealing with a typical “current of commerce” case.' The “current of commerce” test arises in differently phrased statutes involving a wide flow of goods from one state to another through a throat or vent. United States v. Wrightwood Dairies Co., 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. —; Stafford v. Wallace, 258 U.S. 495, 42 S.Ct 397, 66 L.Ed. 735, 23 A.L.R. 229; Swift & Co. v. United States, 196 U.S. 375, 25 S.Ct. 276, 49 L.Ed. 518; Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 43 S.Ct. 470, 67 L.Ed. 839; Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441; Krueger v. Acme Fruit Co., 5 Cir., 75 F.2d 67. Here the language is different; the test is whether employees are “in commerce.” In Stafford v. Wallace, supra, great herds of livestock passed from the west into the Chicago stockyards where they were sold by the consignee commission merchants to packers and livestock dealers, and thence shipped to a substantial extent to the eastern states. The stockyards were a “throat,” and “economic sluice,” through which passed a great flowing current of livestock from west to east. Here, once the goods reached the warehouses, they assumed a wholly local character. • The function of the warehouses was to furnish activities and means for the conduct of a relatively local retail business conducted by one company. This function was that of an ordinary warehouse for a retail establishment and bears no resemblance to a “throat” or a “current of commerce.” Upon delivery to the warehouse," }, { "docid": "12258394", "title": "", "text": "a part of interstate commerce. It did say that they and their practical results are an obstruction to and interference with interstate commerce and the current thereof from state to state, which renders regulation necessary. An attack upon the constitutionality of this Act failed in Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 43 S.Ct. 470, 67 L.Ed. 839. Mr. Chief Justice Taft pointed out that Congress had in this legislation found that by manipulation such contracts had become a constantly recurring burden upon and obstruction to interstate commerce. He remarked that it was impossible to distinguish cash grain, the sales to arrive and the grain actually' delivered in fulfillment of future contracts from the current of stock shipments, declared to be interstate commerce in Stafford v. Wallace, 258 U.S. 495, 42 S.Ct. 397, 66 L.Ed. 735, 23 A.L.R. 229. He said that this was the necessary consequence of the conclusions reached in Swift & Co. v. U. S., 196 U.S. 375, 25 S.Ct. 276, 49 L.Ed. 518, wherein the court refused to permit local incidents of great interstate movements, which incidents taken alone are intrastate, to characterize the movement. That doctrine, he said, applies to future sales of grain, which is a part of the current of interstate commerce to the same extent as it applies to the current of stock shipments under consideration in Stafford v. Wallace. He said [page 477] : “ * * * The sales on the Chicago Board of Trade are just as indispensable to the continuity of the flow of wheat from the West to the mills and distributing points of the East and Europe, as are the Chicago sales of cattle to the flow of stock toward the feeding places and slaughter and packing houses of the East.” In United States v. Patten, 226 U.S. 525, 33 S.Ct. 141, 57 L.Ed. 333, 44 L.R.A.,N.S., 325, the court commented that a corner consists, broadly speaking, in acquiring control of all or the dominant portion of a commodity with the purpose of artificially enhancing the price, one of the important" }, { "docid": "22963432", "title": "", "text": "United States v. Southeastern Underwriters Ass’n, supra, 322 U.S. 533, 547, 64 S.Ct. 1162, 88 L.Ed. 1162; Indiana Farmer’s Guide Publishing Co. v. Prairie Farmer Publishing Co., 293 U.S. 268, 274-277, 55 S.Ct. 182, 79 L.Ed. 356; Swift & Co. v. United States, 196 U.S. 375, 398, 25 S.Ct. 276, 49 L.Ed. 518; Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 35, 43 S.Ct. 470, 67 L.Ed. 839; Stafford v. Wallace, 258 U.S. 495, 42 S.Ct. 397, 66 L.Ed. 735, 23 A.L.R. 229; United States v. Patten 226 U.S. 525, 33 S.Ct. 141, 57 L.Ed. 333, 44 L.R.A.,N.S., 325; Note, 35 Col.L.Rev. 1072, 1088. The Guild contends, however, that it is a labor union, and thus attempts to bring itself within the exception of § 17 of the Sherman Act, as amended, 15 U.S.C.A. § 17. It is true that this exception has recently received a broad interpretation in the light of its original purpose. United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788; United States v. Building & Construction Trades Council of New Orleans, La., 313 U.S. 539, 61 S.Ct. 839, 85 L.Ed. 1508; United States v. International Hod Carriers’, etc., Council, 313 U.S. 539, 61 S.Ct. 839, 85 L.Ed. 1508; United States v. American Federation of Musicians, 318 U.S. 741, 63 S.Ct. 665, 87 L.Ed. 1120; Allen Bradley Co. v. Local Union No. 3, 2 Cir., 145 F.2d 215, now before the Supreme Court, 65 S.Ct. 433. But as we pointed out in the last case cited, 145 F.2d 215, 223, while the parties to the dispute may not always be employers and employees, yet the exception will not apply unless an employer-employee relationship is “the matrix of the controversy.” Columbia River Packers Ass’n v. Hinton, 315 U.S. 143, 62 S.Ct. 520, 522, 86 L.Ed. 750; American Medical Ass’n v. United States, 317 U.S. 519, 63 S.Ct. 44, 87 L.Ed. 497. Here not only are the .disputing parties not in an émployer-employee relationship, but, unlike the Allen Bradley case, the controversy cannot concern itself with conditions of employment, since none" }, { "docid": "1566847", "title": "", "text": "involved in that practical continuity of movement, are not applicable here. See Swift & Co. v. United States, 196 U.S. 375, 387, 388, 25 S.Ct. 276, 49 L.Ed. 518; Lemke v. Farmers’ Grain Co., 258 U.S. 50, 55, 42 S.Ct. 244, 66 L.Ed. 458; Stafford v. Wallace, 258 U.S. 495, 519, 42 S.Ct. 397, 66 L.Ed. 735, 23 A.L.R. 229; Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 35, 43 S.Ct. 470, 67 L.Ed. 839; Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 439, 50 S.Ct. 220, 74 L.Ed. 524.” It will be noted also that the above case dealt with an Act relating to “any transaction in or affecting interstate or foreign commerce”. 48 Stat. 196, § 3(b). In the present case we are not dealing with an Act relating to matters that affect interstate commerce except in the production of goods for commerce. In McGoldrick v. Berwind-White Co., 309 U.S. 33, 60 S.Ct. 388, 393, 84 L.Ed. 565, 123 A.L.R. 876, the Court again recognized that the interstate character of goods ceased “after the interstate journey has ended”. The above phrase is used in the opinion numerous times and definitely reaffirms the coming-to-rest doctrine at the end of the journey in interstate commerce. The case of Atlantic Coast Line Railroad Company v. Standard Oil Company of Kentucky, 275 U.S. 257, 48 S.Ct. 107, 110, 72 L.Ed. 270, dealt with the shipment of oil and gasoline to Tampa, Florida, in which we find the following language: “It seems very clear to us on a broad view of the facts that the interstate or foreign commerce in all this oil ends upon its delivery to the plaintiff into the storage tanks or the storage tank cars at the seaboard, and that from there its distribution to storage tanks, tank cars, bulk stations, and drive-in stations, or directly by tank wagons to customers, is all intrastate commerce. This distribution is the whole business of the plaintiff in Florida. There is no destination intended and arranged for with the ship carriers in Florida at any point" }, { "docid": "23318522", "title": "", "text": "Oil Co., 275 U.S. 257, 267, 48 S.Ct. 107, 72 L.Ed. 270. Consequently, employees who unload wares at the warehouses are working on goods still in interstate commerce, and are therefore, subject to the Act. Klotz v. Ippolito, D.C., 40 F.Supp. 422, 426; Fleming v. American Stores Co., D.C., 42 F.Supp. 511, 524; Jax Beer Co. v. Redfern, 5 Cir., 124 F.2d 172, 174; Fleming v. Alterman, D.C., 38 F.Supp. 94, 98; Drake v. Hirsch, D.C., 40 F.Supp. 290; Lewis v. Nailling, D.C., 36 F.Supp. 187. See Baltimore & O. S. W. R. R. v. Burtch, 263 U.S. 540, 44 S.Ct. 165, 68 L.Ed. 433; Puget Sound Stevedoring Co. v. State Tax Comm., 302 U.S. 90, 58 S.Ct. 72, 82 L.Ed. 68; Union Stock Yard & Transit Co. v. United States, 308 U.S. 213, 60 S.Ct. 193, 84 L.Ed. 198. So, too, as to all employees engaged in checking such interstate goods prior to the time they have come to rest on the platform. Fleming v. American Stores, D.C., 42 F.Supp. 511, 524; Eddings v. Southern Dairies, D.C., 42 F.Supp. 664, 667. Plaintiff insists, however, that those who moVe goods from the platform into the warehouse, those who store them in the proper places, those who take care of them there, those who deliver them to the Illinois stores, and those who do the clerical work involved in such storage and delivery are within the Act. Plaintiff argues that all these activities are merely part of the “stream of commerce” from the place of origin to the retail stores. But we are not dealing with a typical “current of commerce” case.' The “current of commerce” test arises in differently phrased statutes involving a wide flow of goods from one state to another through a throat or vent. United States v. Wrightwood Dairies Co., 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. —; Stafford v. Wallace, 258 U.S. 495, 42 S.Ct 397, 66 L.Ed. 735, 23 A.L.R. 229; Swift & Co. v. United States, 196 U.S. 375, 25 S.Ct. 276, 49 L.Ed. 518; Board of Trade of City of Chicago v." }, { "docid": "16692125", "title": "", "text": "to sign (and did sign) statements that no collusion had been practiced. Under these circumstances appellants’ conduct was not only anticompetitive but also fraudulent. Since the two crimes required proof of different facts, conviction of one did not preclude simultaneous conviction for the other. Gavieres v. U. S., 220 U.S. 338, 342-43, 31 S.Ct. 421, 55 L.Ed. 489 (1911); Carter v. McClaughry, 183 U.S. 365, 394-95, 22 S.Ct. 181, 46 L.Ed. 236 (1902). Accordingly, the judgment of the District Court is affirmed. . Northern Pac. R. Co. v. U. S., 356 U.S. 1, 4-5, 78 S.Ct. 514, 517-518, 2 L.Ed.2d 545 (1958). This statement echoes an earlier pronouncement by Mr. Chief Justice Charles Evans Hughes in Appalachian Coals, Inc. v. U. S., 288 U.S. 344, 359-60, 53 S.Ct. 471, 474, 77 L.Ed. 825 (1933): “The purpose of the Sherman AntiTrust Act is to prevent undue restraints of interstate commerce, to maintain its appropriate freedom in the public interest, to afford protection from the subversive or coercive influences of monopolistic endeavor. As a charter of freedom, the Act has a generality and adaptability comparable to that found to be desirable in constitutional provisions.” On the fluctuating judicial construction regarding the “rule of reason” interpolation see Robert H. Jackson and Edward Dumbauld “Monopolies and the Courts,” 86 U. of Pa.L.R. (January, 1938), 231, 242-49; and Continental T. V. Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49-59, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). . Italics supplied. On the following page appellants recognize that conspiracies violating § 1 of the Sherman Act may either “affect commerce” or occur “in commerce.” The second class are described as “in the flow” of commerce. On “flow” see Chicago Bd. of Trade v. Olsen, 262 U.S. 1, 35, 43 S.Ct. 470, 67 L.Ed. 839 (1923); Stafford v. Wallace, 258 U.S. 495, 515-21, 42 S.Ct. 397, 66 L.Ed. 735 (1922); and Swift & Co. v. U. S., 196 U.S. 375, 398-400, 25 S.Ct. 276, 49 L.Ed. 518 (1906). The jury was instructed on both theories. See Government’s Instruction No. 18 and Defendant’s Instruction No. 53 which were" }, { "docid": "23318524", "title": "", "text": "Olsen, 262 U.S. 1, 43 S.Ct. 470, 67 L.Ed. 839; Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441; Krueger v. Acme Fruit Co., 5 Cir., 75 F.2d 67. Here the language is different; the test is whether employees are “in commerce.” In Stafford v. Wallace, supra, great herds of livestock passed from the west into the Chicago stockyards where they were sold by the consignee commission merchants to packers and livestock dealers, and thence shipped to a substantial extent to the eastern states. The stockyards were a “throat,” and “economic sluice,” through which passed a great flowing current of livestock from west to east. Here, once the goods reached the warehouses, they assumed a wholly local character. • The function of the warehouses was to furnish activities and means for the conduct of a relatively local retail business conducted by one company. This function was that of an ordinary warehouse for a retail establishment and bears no resemblance to a “throat” or a “current of commerce.” Upon delivery to the warehouse, interstate commerce ceased. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R. 947; Gerdert v. Certified Poultry & Egg Co., D.C., 38 F.Supp. 964; Winslow v. Federal Trade Commission, 4 Cir., 277 F. 206, 209, certiorari denied 258 U.S. 618, 42 S.Ct. 271, 66 L.Ed. 793; Atlantic C. L. R. R. v. Standard Oil Co., 275 U.S. 257, 267, 48 S.Ct. 107, 72 L.Ed. 270. Where orders are solicited within a state and the goods are shipped from without the state directly to the customer or to an agent for delivery to the customer the transactions are a part of interstate commerce until the goods reach the customer. Jewel Tea Co. v. Williams, 10 Cir., 118 F.2d 202, 206, and cases there cited; Binderup v. Pathe Exchange, Inc., 263 U.S. 291, 44 S.Ct. 96, 68 L.Ed. 308; Federal Trade Commission v. Pacific States Paper Trade Ass’n, 273 U.S. 52, 47 S.Ct. 255, 71 L.Ed. 534. But here there were no such prior orders. Defendant knew in advance" }, { "docid": "12258393", "title": "", "text": "contracts for future delivery are affected with a national public interest; that as a result, speculation, manipulation and control, coincidental with sudden or unreasonable fluctuations in prices frequently work detrimentally to the producer, consumer and dealers in the products and by-products in interstate commerce. It expressly found that such fluctuations and speculations are an obstruction to and a burden upon interstate commerce in grain and the products and by-products thereof, and necessitate regulation for the protection of such commerce. Having found this situation to exist, Congress provided that a transaction in respect to any article shall be considered to be interstate commerce, if such article is part of that current of commerce usual in the grain trade whereby grain and its products and by-products are sent from one state with the expectation that they will end their transit, after purchase, in another, and proceeded to establish rules for the regulation of Boards of Trade and trading on such Boards. Congress did not in so many words say that the subject matter of future contracts is a part of interstate commerce. It did say that they and their practical results are an obstruction to and interference with interstate commerce and the current thereof from state to state, which renders regulation necessary. An attack upon the constitutionality of this Act failed in Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 43 S.Ct. 470, 67 L.Ed. 839. Mr. Chief Justice Taft pointed out that Congress had in this legislation found that by manipulation such contracts had become a constantly recurring burden upon and obstruction to interstate commerce. He remarked that it was impossible to distinguish cash grain, the sales to arrive and the grain actually' delivered in fulfillment of future contracts from the current of stock shipments, declared to be interstate commerce in Stafford v. Wallace, 258 U.S. 495, 42 S.Ct. 397, 66 L.Ed. 735, 23 A.L.R. 229. He said that this was the necessary consequence of the conclusions reached in Swift & Co. v. U. S., 196 U.S. 375, 25 S.Ct. 276, 49 L.Ed. 518, wherein the court" }, { "docid": "23318520", "title": "", "text": "The commerce clause endows Congress with full and plenary power to do anything and everything necessary to protect interstate commerce. United States v. Wrightwood Dairies Co., 315 U.S. 110, at page 119, 62 S.Ct. 523, 86 L.Ed. -. The specific question is whether in the statute involved the Congress has seen fit to exercise all of its power. In view of the limitations present in the legislation, our question is whether employees are engaged in commerce or in production for commerce or in any process or occupation necessary to such production. Our first inquiry is whether employees whose activities relate to procurement of goods from other states and those receiving and unloading them at the warehouses are “in commerce.” Commerce includes more than transportation; it embraces all component parts of commercial intercourse among states. Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 10, 49 S.Ct. 1, 73 L.Ed. 147. Goods purchased in one state for transportation to and delivery in another are included. Currin v. Wallace, 306 U.S. 1, 10, 59 S.Ct. 379, 83 L.Ed. 441; Dahnke-Walker Co. v. Bondurant, 257 U.S. 282, 290, 42 S.Ct. 106, 66 L.Ed. 239; Lemke v. Farmer’s Grain Co., 258 U. S. 50, 42 S.Ct. 244, 66 L.Ed. 458; Local 167, Brotherhood of Teamsters v. United States, 291 U.S. 293, 54 S.Ct. 396, 78 L.Ed. 804. Defendant’s purchase of goods for importation from across the state line is commerce whether delivery is made to the warehouse or to the stores. Federal Trade Commission v. Pacific Paper Ass’n, 273 U.S. 52, 63, 47 S.Ct. 255, 71 L.Ed. 534; Dozier v. Alabama, 218 U.S. 124, 30 S.Ct. 649, 54 L.Ed. 965, 28 L.R.A.,N.S., 264. It follows that employees engaged in procuring goods from other states are within the Act. Whether workman unloading out-of-state goods at the warehouses are “in commerce,” depends upon when these come to rest and lose their interstate character. They have not reached their destination .until actually unloaded and deposited on the warehouse platform. Then and not .until then, their interstate journey is at an end. Atlantic Coast Line R. R. v. Standard" }, { "docid": "17144781", "title": "", "text": "the final and dominant rule, for otherwise Congress would be denied the exercise of its constitutional authority, and the state, and not the Nation, would be supreme within the national field.” See, also, United States v. New York Central R. Co., 272 U.S. 457, 464, 47 S.Ct. 130, 71 L.Ed. 350. The decisions from which we have quoted leave no doubt of the power of Congress to regulate those phases of a carrier’s business which are purely intrastate in character if such regulation is necessary to the proper regulation and control of its interstate business. On the same principle it was held within the power of Congress to regulate the sale of livestock in stockyards, where the stockyards constituted public utilities to promote the flow of interstate commerce, even though many of the transactions subject to such regulation were intrastate in character. Stafford v. Wallace, 258 U.S. 495, 42 S.Ct. 397, 66 L.Ed. 735, 23 A.L.R. 229. This case is of peculiar importance here for the regulatory statute was sustained in large part on the reasoning of Swift & Co. v. United States, 196 U.S. 375, 25 S.Ct. 276, 49 L.Ed. 518, a prosecution under the Sherman Act (15 U.S.C.A. §§ 1-7, 15 note); the court holding: “If Congress could provide for punishment or restraint of such conspiracies after their formation through the Anti-Trust Law as in the Swift Case, certainly it may provide regulation to prevent their formation.” Stafford v. Wallace, 258 U.S. 495, at page 520, 42 S.Ct. 397, 403, 66 L.Ed. 735, 23 A.L.R. 229. By identical reasoning, if labor disturbances of employees such as those who are involved here, warrant the exercise of injunctive power to prevent interference with interstate commerce, as was asserted by the defendant here in the shopmen’s strike of 1922 and as was held in United States v. Railway Employees’ Department (D.C.) 283 F. 479, and Id. (D.C.) 290 F. 978, certainly Congress can take appropriate steps to prevent such interference in advance of the disturbance. A statute providing for collective bargaining between interstate carriers and their employees is an appropriate means" }, { "docid": "5142488", "title": "", "text": "in the production of goods for commerce, but it is contended that he was engaged in commerce. “Commerce” is defined in section 203(b) as follows: “‘Commerce’ means trade, commerce, transportation, transmission, or communication among the several States, or from any State to any place outside thereof.” The defendant’s principal contention as to the non-applicability of the Act is that the plaintiff was not engaged in commerce within the meaning of this definition. It is true the activities of the plaintiff were wholly within the City of Cumberland, in the State of Maryland, but they constituted assistance in the transportation of interstate mail. It seems quite clear therefore that the plaintiff was engaged in commerce within the meaning of the Act. It is, of course, now well understood, from recent decisions of the Supreme Court, that the concept of interstate commerce has been much broadened in recent years, especially in the application of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., and the Fair Labor Standards Act, both of which are based on the interstate commerce power of Congress. But apart from these later decisions, it also seems clear enough, from earlier decisions of the Supreme • Court, that the plaintiff’s activity was necessarily a part of interstate commerce. Binderup v. Pathe Exchange, Inc., 263 U.S. 291, 309, 44 S.Ct. 96, 68 L.Ed. 308; Swift & Co. v. United States, 196 U.S. 375, 398, 25 S.Ct. 276, 49 L.Ed. 518; Stafford v. Wallace, 258 U.S. 495, 516, 42 S.Ct. 397, 66 L.Ed. 735, 23 A.L.R. 229; Labor Board v. Jones & Laughlin Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; Puget Sound Stevedoring Co. v. State Tax Comm. 302 U.S. 90, 58 S.Ct. 72, 82 L.Ed. 68. In N.L.R.B. v. Carroll, 120 F.2d 457, 458, the First Circuit Court of Appeals in a per curiam opinion filed June 11, 1941, held that a contract mail carrier engaged in the transportation of mail by contract to and from the United States Post Office at Lynn, Mass., and other nearby places, in the State, was" }, { "docid": "23389588", "title": "", "text": "United States, 295 U.S. 495, 543, 55 S.Ct. 837, 848, 79 L.Ed. 1570, 97 A.L.R. 947, wherein it was found that the effect of the flow of commodities into a State was so remote as to be beyond the federal power; but we do not regard those expressions as controlling under the circumstances of the pending litigation notwithstanding the subsequent citation of the case in National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 32, 36, 40, 41, 57 S.Ct. 615, 621, 623, 625, 626, 81 L.Ed. 893, 108 A.L.R. 1352, and Santa Cruz Fruit Packing Co. v. Labor Board, 58 S.Ct. 656, 660, 82 L.Ed.-. In the last cited case the Supreme Court considered the business of a packing company engaged in preparing for shipment fruits and vegetables grown in California of which a substantial percentage was then shipped in interstate or foreign commerce. It was held that in view of the interstate commerce actually carried on by the packer, the contention that the business was not covered by the Act because the raw materials of production were not brought into the State from the outside was without merit. The court said (page 659): “The 'existence of a continuous flow of interstate commerce through the state may indeed readily show the intimate relation of particular transactions to that commerce. Stafford v. Wallace, 258 U.S. 495, 516, 42 S.Ct. 397, 402, 66 L.Ed. 735, 23 A.L.R. 229; Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 33, 43 S.Ct. 470, 476, 67 L.Ed. 839. But, as we said in the Jones & Laughlin Case, the instances in which the metaphor of a ‘stream of commerce’ has been used are but particular, and not exclusive, illustrations of the protective power which Congress may exercise. ‘The congressional authority to protect interstate commerce from burdens and obstructions is not limited to transactions which can be deemed to be an essential part of a “flow” of interstate or foreign commerce. Burdens and obstructions may be due to injurious actions springing from other sources.’ National Labor Relations Board" }, { "docid": "1566846", "title": "", "text": "undisputed facts thus afford no warrant for the argument that the poultry handled by defendants at their slaughterhouse markets was in a ‘current’ or ‘flow’ of interstate commerce, and was thus subject to congressional regulation. The mere fact that there may be a constant flow of commodities into a state does not mean that the flow continues after the property has arrived and has become commingled with the mass of property within the state and is there held solely for local disposition and use. So far as the poultry here in question is concerned, the flow in interstate commerce had ceased. The poultry had come to a permanent rest within the state. It was not held, used, or sold by defendants in relation to any further transactions in interstate commerce and was not destined for transportation to other states. Hence decisions which deal with a stream of interstate commerce — where goods come to rest within a state temporarily and are láter to go forward in interstate commerce — and with the regulations of transactions involved in that practical continuity of movement, are not applicable here. See Swift & Co. v. United States, 196 U.S. 375, 387, 388, 25 S.Ct. 276, 49 L.Ed. 518; Lemke v. Farmers’ Grain Co., 258 U.S. 50, 55, 42 S.Ct. 244, 66 L.Ed. 458; Stafford v. Wallace, 258 U.S. 495, 519, 42 S.Ct. 397, 66 L.Ed. 735, 23 A.L.R. 229; Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 35, 43 S.Ct. 470, 67 L.Ed. 839; Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 439, 50 S.Ct. 220, 74 L.Ed. 524.” It will be noted also that the above case dealt with an Act relating to “any transaction in or affecting interstate or foreign commerce”. 48 Stat. 196, § 3(b). In the present case we are not dealing with an Act relating to matters that affect interstate commerce except in the production of goods for commerce. In McGoldrick v. Berwind-White Co., 309 U.S. 33, 60 S.Ct. 388, 393, 84 L.Ed. 565, 123 A.L.R. 876, the Court again recognized that the" }, { "docid": "11023160", "title": "", "text": "by the Act, but that was so because Higgins was not engaged in the unloading of the merchandise from the trucks and rails. His duties were to load trucks with merchandise obtained from the warehouse and deliver it to the local trade. In addition to the Higgins case, defendant cites the cases noted below. Those cases do not involve the Fair Labor Standards Act. They are rate cases, actions under the Federal Employer’s Liability Act, 45 U.S.C.A. § 51 et seq., and one is a criminal case. They do not constitute a complete guide in the case before us, since decisions dealing with various assertions of federal power in the commerce field are not particularly helpful in determining the reach of this Act. Kirschbaum Co. v. Walling, 316 U.S. 517, 520, 521, 62 S.Ct. 1116, 86 L.Ed. 1638. Defendant, however, also cites cases under the Act, supporting its contention, but we believe that the preferable view is found in the cases presently cited. The right to the title or custody of the merchandise in an interstate shipment is not determinative of the question where interstate commerce ends, East Ohio Gas Co. v. Tax Commission, 283 U.S. 465, 470, 51 S.Ct. 499, 75 L.Ed. 1171; National Labor Relations Board v. Fainblatt, 306 U.S. 601, 605, 307 U.S. 609, 59 S.Ct. 668, 83 L.Ed. 1014. Neither the switch track nor the cars in which goods are carried are a place of rest or final destination, Stafford v. Wallace, 258 U.S. 495, 515, 42 S.Ct. 397, 66 L.Ed. 735, 23 A.L.R. 229; consequently, the coal and materials have not reached their destination until actually unloaded and deposited in the yards. Walling v. Goldblatt Bros., 7 Cir., 128 F.2d 778. We have been told that in using the phrase “engaged in commerce” Congress meant to extend the benefits of the Act to employees “throughout the farthest reaches of the channels of interstate commerce,” and when goods once enter the channels of interstate commerce, they thereby acquire an interstate status which continues until the interstate journey ends. Walling v. Jacksonville Paper Co., 317 U.S. 564," }, { "docid": "22963431", "title": "", "text": "restrain .such commerce. Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241; United Copper Securities Co. v. Amalgamated Copper Co., 2 Cir., 232 F. 574. Here the purpose of the Basic Agreement seems not at all in doubt; it is. in effect admitted by the Guild’s president in his affidavit, although he calls it a “minimum collective bargaining agreement” “to produce a fair return for the labor of its members who write plays for a living.” But the cases cited earlier show that a price-fixing combination is not saved by the high purpose for which it is conceived. Cf. also Fashion Originators’ Guild of America v. F. T. C., 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949. So far as the moving papers go, they thus show that this is in fact a system of control of theatrical productions wherever produced or transported throughout the country and even in foreign lands. That it also encompasses local incidents does not deprive it of its interstate character. United States v. Southeastern Underwriters Ass’n, supra, 322 U.S. 533, 547, 64 S.Ct. 1162, 88 L.Ed. 1162; Indiana Farmer’s Guide Publishing Co. v. Prairie Farmer Publishing Co., 293 U.S. 268, 274-277, 55 S.Ct. 182, 79 L.Ed. 356; Swift & Co. v. United States, 196 U.S. 375, 398, 25 S.Ct. 276, 49 L.Ed. 518; Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 35, 43 S.Ct. 470, 67 L.Ed. 839; Stafford v. Wallace, 258 U.S. 495, 42 S.Ct. 397, 66 L.Ed. 735, 23 A.L.R. 229; United States v. Patten 226 U.S. 525, 33 S.Ct. 141, 57 L.Ed. 333, 44 L.R.A.,N.S., 325; Note, 35 Col.L.Rev. 1072, 1088. The Guild contends, however, that it is a labor union, and thus attempts to bring itself within the exception of § 17 of the Sherman Act, as amended, 15 U.S.C.A. § 17. It is true that this exception has recently received a broad interpretation in the light of its original purpose. United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788; United States v." }, { "docid": "11107009", "title": "", "text": "really relate to matters of regular, continuous business.” It appears clear that respondent in its business of gathering and distributing news is engaged in interstate commerce. In Stafford v. Wallace, 258 U.S. 495, 521, 42 S.Ct. 397, 403, 66 L.Ed. 735, 23 A.L.R. 229, the court said: “Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce is within the regulatory power of Congress under the commerce clause, and it is primarily for Congress to consider and decide the fact of the danger and meet it. This court will certainly not substitute its judgment for that of Congress in such a matter unless the relation of the subject to interstate commerce and its effect upon it are clearly nonexistent.” See, also, Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 37, 38, 40, 43 S.Ct. 470, 67 L.Ed. 839. Industrial disputes in an industry or business engaged in interstate commerce may, and frequently do, burden and interrupt the flow of such commerce. Congress recognized this in section 1 of the act (29 U.S.C.A. § 151). The courts have done likewise. Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed. 349, 16 A.L.R. 196; American Steel Foundries v. Tri-City, etc., Council, 257 U.S. 184, 42 S.Ct. 72, 66 L.Ed. 189, 27 A.L.R. 360; Coronado Coal Co. v. United Mine Workers, 268 U.S. 295, 45 S.Ct. 551, 69 L.Ed. 963. The removal from an instrumentality of commerce, or from a business engaged in interstate commerce, or from a business truly constituting a “throat” through which the current of commerce flows, of a fact determined by experience to be the cause of such disturbances, was within the power of Congress because it directly affected interstate commerce. Anderson v. Shipowners’ Ass’n, 272 U.S. 359, 47 S.Ct. 125, 71 L.Ed. 298. In respondent’s business, although some of the news is obtained by the reporters locally, many dispatches come in from other states or foreign countries. All the news must be written or rewritten and is then" }, { "docid": "1567494", "title": "", "text": "1181.” Viewing the business of Alternan as a whole in an effort to determine whether it is engaged in commerce, and applying the statement of Mr. Justice Holmes in Swift & Co. v. United States, 196 U.S. 375, 395, 398, 25 S.Ct. 276, 280, 49 L.Ed. 518, that such commerce “is not a technical legal conception, but a practical one, drawn from the course of business,” the fact that instead of being an agent of the out-of-State sellers it is a purchaser would be immaterial and would render the reasoning of the Binderup case applicable here. The purpose of The Fair Labor Standards Act is the protection of commerce without regard to the ownership of goods moving in it. As to the practical aspects of such transactions as are here in proof, and the legal consequences resulting therefrom as it relates to the question of commerce, see Grand Union T. Co. v. Evans, D.C., 216 F. 791; Wholesale Grocers’ Association v. Federal Trade Commission, 5 Cir., 277 F. 657; Eastern States Retail Lumber Dealers Association v. United States, 234 U.S. 600, 34 S.Ct. 951, 58 L.Ed. 1490, L.R.A.1915A, 788; Federal Trade Commission v. Wallace, 8 Cir., 75 F.2d 733; and Southern Hardware Jobbers’ Association v. Federal Trade Commission, 5 Cir., 290 F. 773. In Currin v. Wallace, 306 U.S. 1, 59 S. Ct. 379, 83 L.Ed. 441, it is held that the inspection and grading of tobacco, even though taking place before the auction and sale, has immediate relation to the sales in interstate and foreign commerce. In Mulford v. Smith, 307 U.S. 38, 47, 59 S. Ct. 648, 83 L.Ed. 1092, it is held that the sale of tobacco for interstate shipment may be controlled as an exercise of the regulation of commerce. In Santa Cruz Fruit Packing Co. v. National Labor Relations-Board, 303 U.S. 453, 58 S.Ct. 656, 82 L.Ed. 954, the canning of fruits and vegetables, raised in one State, but sold later interstate, is held to be in commerce. United States v. Darby Lumber Company, supra, affirms the proposition that manufacture, even if only with intent" } ]

[ { "docid": "8406258", "title": "", "text": "had denied a similar petition. The Court declines to do so here. Thus plaintiff Warburton’s class claims are not time-barred only if the filing of the original class action complaint tolled the limitations period for these subsequent claims. The Court finds that the limitations period was not tolled. The Supreme Court has held that the pendency of a class action tolls the limitations period for a proposed class member’s individual claim. See Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983); American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). Absent tolling, prospective plaintiffs and potential class members would be forced to intervene or to bring their own individual suits in order to prevent a later time-bar. Thus tolling is necessary to foster judicial economy. Crown, Cork, 462 U.S. at 350, 103 S.Ct. at 2395-96. Equitable tolling is not, however, without its dangers. Justice Powell concurred in Crown, Cork to note that this rule “was a generous one, inviting abuse.” Id. at 354, 103 S.Ct. at 2398 (Powell, J. concurring). Most courts have heeded Justice Powell’s concern and have not extended equitable tolling to this situation where, after a first denial of class certification, a new class representative attempts to bring a subsequent class action. See, e.g., Andrews v. Orr, 851 F.2d 146 (6th Cir.1988); Robbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir.1987) (extension of tolling to class actions falls into “range of abusive options”); Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir.1987) (stating that American Pipe “certainly did not intend to afford plaintiffs the opportunity to argue and reargue the question of class certification by filing new but repetitive complaints”); Salazar-Calderon v. Presidio Valley Farmers Ass’n, 765 F.2d 1334, 1351 (5th Cir.1985), cert. denied, 475 U.S. 1035, 106 S.Ct. 1245, 89 L.Ed.2d 353 (1986) (finding no authority for the contention that “putative class members may piggyback one class action onto another and thus toll the statute of limitations indefinitely”). The Court finds these cases persuasive. Plaintiffs attempt to distinguish these" } ]

[ { "docid": "7370388", "title": "", "text": "correctness of the earlier class certification decision. See, e.g., Basch v. Ground Round, Inc. 139 F.3d 6, 11 (1st Cir.1998). Some circuits have extended the Robbin and Konvek rule prohibiting relitigation, applying it to cases in which a later class of plaintiffs does not disagree with the denial of class certification, but rather tries to cure the deficiency that led to the denial. These circuits say that plaintiffs “may not piggyback one class action onto another and thus toll the statute of limitations indefinitely.” Griffin v. Singletary, 17 F.3d 356, 359 (11th Cir.1994) (internal quo tation marks omitted); see Salazar-Calderon v. Presidio Valley Farmers Ass’n, 765 F.2d 1334, 1351 (5th Cir.1985) (“[Putative class members may [not] piggyback one class action onto another[.]”); see also Andrews v. Orr, 851 F.2d 146 (6th Cir.1988); Fleck v. Cablevision VII, Inc., 807 F.Supp. 824 (D.D.C.1992); Smith v. Flagship Int'l, 609 F.Supp. 58 (N.D.Tex.1985); Burns v. Ersek, 591 F.Supp. 837 (D.Minn.1984). In Griffin v. Singletary, three individual named plaintiffs brought a would-be class action under Title VII based in part on the defendant-employer’s use of a qualifying test. The district court initially relied on Fifth Circuit precedent to certify the class as an “across-the-board” class action that did not require that the individual named plaintiff suffer the injuries of unnamed class members. After the Supreme Court, in a separate case, disapproved “across-the-board” class actions and reiterated its prior holdings that a class representative must suffer the same injuries as unnamed class members, the district court decerti-fied the class. See General Telephone of the Southwest v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (“We have repeatedly held that ‘a class representative must be part of the class and “possess the same interest and suffer the same injury” as the' class members.’ ” (internal quotations and citations omitted)). The district court held that the would-be class failed to satisfy Rule 23(a)(4) because the first two individual named plaintiffs had not been injured by the test, and the third had not filed a timely charge with the Equal Employment Opportunity Commission. After dismissal" }, { "docid": "7370387", "title": "", "text": "action to litigate those actions. Neither American Pipe nor Croivn, Cork & Seal speaks directly to this question, for later-filed individual actions, rather than class actions, were at issue in both of these cases. If class action certification had been denied in CSS V, and if plaintiffs in this action were seeking to relitigate the correctness of that denial, we would not permit plaintiffs to bring a class action. In Robbin v. Fluor Corp., 835 F.2d 213 (9th Cir.1987), we interpreted American Pipe not to allow tolling when the district court in the previous action had denied class certification, and when the second action sought to relitigate the issue of class certification and thereby to circumvent the earlier denial. Id. at 214. The Second Circuit came to the same conclusion in Korwek v. Hunt, 827 F.2d 874 (2nd Cir.1987). Other circuits agree with Robbin and Konvek, holding that the filing of an earlier class action does not toll the statute of limitations when the second action is no more than an attempt to relitigate the correctness of the earlier class certification decision. See, e.g., Basch v. Ground Round, Inc. 139 F.3d 6, 11 (1st Cir.1998). Some circuits have extended the Robbin and Konvek rule prohibiting relitigation, applying it to cases in which a later class of plaintiffs does not disagree with the denial of class certification, but rather tries to cure the deficiency that led to the denial. These circuits say that plaintiffs “may not piggyback one class action onto another and thus toll the statute of limitations indefinitely.” Griffin v. Singletary, 17 F.3d 356, 359 (11th Cir.1994) (internal quo tation marks omitted); see Salazar-Calderon v. Presidio Valley Farmers Ass’n, 765 F.2d 1334, 1351 (5th Cir.1985) (“[Putative class members may [not] piggyback one class action onto another[.]”); see also Andrews v. Orr, 851 F.2d 146 (6th Cir.1988); Fleck v. Cablevision VII, Inc., 807 F.Supp. 824 (D.D.C.1992); Smith v. Flagship Int'l, 609 F.Supp. 58 (N.D.Tex.1985); Burns v. Ersek, 591 F.Supp. 837 (D.Minn.1984). In Griffin v. Singletary, three individual named plaintiffs brought a would-be class action under Title VII based in part" }, { "docid": "11360210", "title": "", "text": "inapplicable to cases where the original plaintiff lacked standing to file a class action. However, Korwek is silent on this subject and stands only for the proposition that once class certification is denied, putative class members may not rely on the American Pipe rule to commence a new, substantially identical class action because this would allow the putative class members to “argue and reargue the question of class certification by filing new but repetitive complaints.” Korwek, 827 F.2d at 879.... Id. at 454 n. 20. In Korwek the Second Circuit concluded that after class certification was denied because the claims were inappropriate for class treatment, the American Pipe rule did not apply to “permit the filing by putative class members of a subsequent class action nearly identical in scope to the original class action which was denied certification,” because doing so would open the door to “ ‘piggy-back[ing] one class action onto another and thus toll[ing] the statute of limitations indefinitely.’ ” Korwek, 827 F.2d at 876, 878, following Salazar-Calderon v. Presidio Valley Farmers Ass’n, 765 F.2d 1334, 1351 (5th Cir.1985) (concluding there is “no authority for [the] contention that putative class members may piggyback one class action onto another, and thus toll the statute of limitations indefinitely”), cert. denied, 475 U.S. 1035, 106 S.Ct. 1245, 89 L.Ed.2d 353 (1986). In accord Basch v. Ground Round, Inc., 139 F.3d 6, 8 n. 4 (1st Cir.1998), cert. denied, 525 U.S. 870, 119 S.Ct. 165, 142 L.Ed.2d 135 (1998); Andrews v. Orr, 851 F.2d 146, 149 (6th Cir.1988). Justice Powell, in his concurrence in American Pipe, commented, “The tolling rule of American Pipe is a generous one, inviting abuse.” 462 U.S. at 354, 103 S.Ct. 2392. In In re Elscint, Ltd. Sec. Litig., 674 F.Supp. 374, 378 (D.Mass.1987), the district court, although stating that “lack of standing may not per se mandate an exemption from the application of the tolling rule,” was “troubled by the potential abuse of a rule extending class action tolling of all cases in which certification is denied for lack of standing” and potentially “encourag[ing] attempts to circumvent" }, { "docid": "23362258", "title": "", "text": "without considering the applicable statute of limitations, found that the action qualified for class status, applying the requisites of Rule 23(a) and (b). This Court likewise allowed the action to proceed, finding that the statute of limitations was tolled under American Pipe based, however, on an analysis of a single issue— whether the state action was sufficiently related to the federal action to warrant invocation of American Pipe. Cullen, 811 F.2d at 719-21. Neither the district court nor this Court addressed the question of whether as a general matter the American Pipe tolling rule applied to subsequently filed class actions. The issue never was briefed, argued, or decided. Instead, it was assumed sub silentio that American Pipe applied to subsequently filed class actions. Such a sub silentio holding “is not binding precedent,” Brooks v. Flagg Bros., 553 F.2d 764, 774 (2d Cir.1977), rev’d on other grounds, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978), and this panel is not constrained to follow it. Of the courts that have addressed squarely the specific question before this Court, see Salazar-Calderon v. Presidio Valley Farmers Ass’n., 765 F.2d 1334 (5th Cir.1985), cert. denied, 475 U.S. 1035, 106 S.Ct. 1245, 89 L.Ed.2d 353 (1986); Krinsk v. Fund Asset Management, Inc., [1986-1987 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 192,730 (S.D.N.Y. May 1, 1986) [Available on WESTLAW, DCT database]; Andrews v. Orr, 614 F.Supp. 689 (S.D.Ohio 1985); Smith v. Flagship Int'l, 609 F.Supp. 58 (N.D.Tex.1985); Burns v. Ersek, 591 F.Supp. 837 (D.Minn.1984), all have found that the American Pipe tolling rule does not apply to permit putative class members to file a subsequent class action. Salazar-Calderon, 765 F.2d at 1351; Andrews, 614 F.Supp. at 692; Smith, 609 F.Supp. at 64; Burns, 591 F.Supp. at 842. Accord Rhoades v. Jim Dandy Co., 107 F.R.D. 26, 30 (N.D.Ala.1985) (discusses in dicta policy reasons for not applying American Pipe rule to subsequent class actions). The Fifth Circuit in Salazar-Calderon refused to extend the American Pipe rule to successive class actions, concluding that “putative class members may [not] piggyback one class action onto another and thus toll the statute" }, { "docid": "18049624", "title": "", "text": "members have relied on a prior certification. Andersen, joined by Sands Brothers, cites as authority for its position a number of courts of appeals’ decisions which treat a related, although Cutler argues distinguishable, situation. In those cases the issue was the application of American Pipe tolling to subsequent intervenors or sequential class actions after there had been definitive denials of class certification in the original action. For example, in Korwek v. Hunt, 827 F.2d 874 (2d Cir.1987), an early case in this line, the plaintiffs-appellants had filed a complaint alleging class claims identical theoretically and temporally to those raised in a previously filed class action suit which was denied class certification mainly because of overwhelming manageability difficulties. Appellants ignored the district court’s express finding that the original action was unwieldy, first when attempting to intervene and expand the limited Gordon class, and again when filing, what was essentially a duplicate of the original complaint. Id. at 879. The Second Circuit refused to extend tolling under those circumstances, concluding, “The Supreme Court in American Pipe apd Croivn, Cork certainly did not intend to afford plaintiffs the opportunity to argue and reargue the question of class certification by filing new but repetitive complaints.” Id. The underlying concern in Korwek and the articulated basis for the result was that application of American Pipe tolling to successive attempts to certify a previously rejected class would sanction an endless succession of class filings. Korwek held that American Pipe tolling does not operate to permit plaintiffs to relitigate the propriety of a class action. The great weight of authority has adopted similar reasoning and has rejected the applicability of American Pipe tolling to such successive class actions. See, e.g., Basch v. Ground Round, Inc., 139 F.3d 6, 11-12 (1st Cir.1998) (an action held to be inappropriate for class treatment does not toll statute of limitations for subsequent class actions); Andrews v. Orr, 851 F.2d 146, 148-49 (6th Cir.1988) (same); Robbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir.1987) (same); Salazar-Calderon v. Presidio Valley Farmers Ass’n, 765 F.2d 1334, 1351 (5th Cir.1985) (rejecting American Pipe tolling" }, { "docid": "9991407", "title": "", "text": "broad request rejected in the original suit. Id. at 876. The Second Circuit rightly declined to toll the statutory period in these circumstances, as the district court had found that the broad class requested would be unwieldy and unmanageable regardless of the class representative. Indeed, the Second Circuit did not foreclose tolling the limitations period for subsequent class actions asserting an appropriate scope. Id. (“This Court notes that it leaves for another day the question whether the filing of a potentially proper subclass would be entitled to tolling under American Pipe. ”). In taking this approach, Korwek followed the Fifth Circuit’s decision in Salazar-Calderon v. Presidio Valley Farmers Ass’n, 765 F.2d 1334 (5th Cir.1985), which found that “American Pipe tolling does not apply to permit putative class members to file a subsequent' class action.” Korwek, 827 F.2d at 877-78. Significantly, in Salazar-Calderon the putative class had been denied certification in the first action because of defects in the purported class itself. The Fifth Circuit' noted that common questions of law and fact did not predominate among the putative class members and that “a class action was not necessarily the superior method for handling the controversy.” Salazar-Calderon, 765 F.2d at 1350. Similarly, in the leading First Circuit case which followed Korwek and Salazar-Calderon, the refusal to allow tolling in sequential class actions was in the context of a district court having based its earlier denial of class certification on deficiencies in the class itself. See Basch v. Ground Round, Inc., 139 F.3d 6, 8 n. 4 (1st Cir.1998) (class members not “similarly situated” due to many factual differences between them); see also Andrews v. Orr, 851 F.2d 146, 149 (6th Cir.1988) (applying Korwek and Salazar-Calderon without noting the reason for the district court’s denial of class certification). The second approach, which only the Eleventh Circuit has taken, reads Korwek broadly to deny tolling to all sequential plaintiffs invoking the class action device, regardless of the reason class certification was denied in the earlier suit. In Griffin v. Singletary, 17 F.3d 356 (11th Cir.1994), which involved a district court’s denial of class" }, { "docid": "22181961", "title": "", "text": "period for additional class actions by putative members of the original asserted class. See Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir.1987) (“The Supreme Court ... certainly did not intend to afford plaintiffs the opportunity to argue and reargue the question of class certification by filing new but repetitive complaints.”); Salazar-Calderon v. Presidio Valley Farmers Ass’n, 765 F.2d 1334, 1351 (5th Cir.1985), cert. denied, 475 U.S. 1035, 106 S.Ct. 1245, 89 L.Ed.2d 353 (1986) (“Plaintiffs have no authority for their contention that putative class members may piggyback one class action onto another and thus toll the statute of limitations indefinitely....”); Robbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir. 1987) (adopting reasoning of Korwek). These decisions reflect the concern expressed by Justice Powell, concurring separately in Crown, Cork & Seal: “The tolling rule of American Pipe [& Constr. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed. 2d 713 (1974)] is a generous one, inviting abuse.” 462 U.S. at 354, 103 S.Ct. at 2398. The plaintiffs make one contention that is not mentioned in any of the cited cases. Relying on United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977), they argue that the time for filing their class claims was tolled until all appeal and intervention rights expired in Brown. They misconstrue the holding of McDonald. In that case the plaintiff was permitted to intervene in an earlier class action of which she was a putative class member solely for the purpose of appealing the court’s denial of class certification. McDonald dealt only with the right to intervene for the purpose of seeking reversal of a denial of class certification; nothing in the opinion supports the view that the American Pipe tolling rule applies to class members who do not intervene to appeal, but seek to initiate a new class action. C. Thus we agree with the district court that the thirty day limitations period for filing individual administrative complaints was tolled during the pendency of the earlier class actions, but that there was no tolling for future class" }, { "docid": "19196415", "title": "", "text": "denying intervention to movant-intervenors Platt, Baber, Co-zart, Jones, and Oyefesobi. The district court held that “[bjecause none of these potential intervenors filed a timely charge of discrimination with the [EEOC] as required by the law of this case,” they “stand in no better shoes than did Smith” under the prior panel opinion. We affirm that denial of intervention on the basis of the district court’s reasoning. The Griffin appellants further contend that the district court erred when it denied Griffin and Dejerinett leave to amend their complaint. The district court reasoned that despite their efforts to amend their complaints, Griffin, Dejerinett, and Smith “continue to name no person who—under the mandate of the appellate court—would be a proper representative of persons with testing claims.” We agree with the district court, and therefore affirm its denial of leave to amend. Finally, the Griffin appellants argue that the district court erred in dismissing their challenge to the high school diploma requirement and in vacating the order granting intervention to Smith. Because no named plaintiff has standing to represent those with diploma claims, and we have already held that Smith did not have standing to represent those with testing claims, we affirm the order of the district court dismissing the diploma claim and vacating the order granting Smith intervention. A. THE NON-PIGGYBACK RULE FOR CLASS ACTIONS The Platt appellants contend that the district court erred in denying their motions to certify class actions. The district court held that “Plaintiffs may not piggyback one class action onto another and thus toll the statute of limitations indefinitely.” We agree. “The courts of appeals that have dealt with the issue appear to be in unanimous agreement that the pendency of a previously filed class action does not toll the limitations period for additional class actions by putative members of the original asserted class.” Andrews v. Orr, 851 F.2d 146, 149 (6th Cir.1988) (emphasis added) (citing Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir.1987); Salazar-Calderon v. Presidio Valley Farmers Ass’n, 765 F.2d 1334, 1351 (5th Cir.1985), cert. denied, 475 U.S. 1035, 106 S.Ct. 1245, 89 L.Ed.2d" }, { "docid": "23362259", "title": "", "text": "before this Court, see Salazar-Calderon v. Presidio Valley Farmers Ass’n., 765 F.2d 1334 (5th Cir.1985), cert. denied, 475 U.S. 1035, 106 S.Ct. 1245, 89 L.Ed.2d 353 (1986); Krinsk v. Fund Asset Management, Inc., [1986-1987 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 192,730 (S.D.N.Y. May 1, 1986) [Available on WESTLAW, DCT database]; Andrews v. Orr, 614 F.Supp. 689 (S.D.Ohio 1985); Smith v. Flagship Int'l, 609 F.Supp. 58 (N.D.Tex.1985); Burns v. Ersek, 591 F.Supp. 837 (D.Minn.1984), all have found that the American Pipe tolling rule does not apply to permit putative class members to file a subsequent class action. Salazar-Calderon, 765 F.2d at 1351; Andrews, 614 F.Supp. at 692; Smith, 609 F.Supp. at 64; Burns, 591 F.Supp. at 842. Accord Rhoades v. Jim Dandy Co., 107 F.R.D. 26, 30 (N.D.Ala.1985) (discusses in dicta policy reasons for not applying American Pipe rule to subsequent class actions). The Fifth Circuit in Salazar-Calderon refused to extend the American Pipe rule to successive class actions, concluding that “putative class members may [not] piggyback one class action onto another and thus toll the statute of limitations indefinitely.” Salazar-Calderon, 765 F.2d at 1351. Salazar-Calderon presented a unique pattern of events for review. Six named plaintiffs unsuccessfully sought certification for a class of 809 Mexican nationals. Two hundred and fifty-one members of the purported class then filed two class action suits, one alleging violations of federal statutory law and the other alleging causes of action in contract. These suits likewise were denied class certification. After unsuccessfully seeking to intervene as named plaintiffs in the two new actions, 235 members of the putative class filed a separate complaint on behalf of themselves as individuals. As to this individual action, the Fifth Circuit found that the applicable limitations period was tolled for each class member during the pendency of the original motion for class certification, but not while the second motion for class certification was pending. The Court reasoned that “it has repeatedly been noted that ‘the tolling rule [in class actions] is a generous one, inviting abuse,’ ... and to construe the rule as plaintiffs would have us presents just such dangers.”" }, { "docid": "7370429", "title": "", "text": "a class of front-deskers. CSS V, 134 F.3d at 927-28. CSS V held that they had failed to do so, and Plaintiffs unfortunately are stuck with that holding, whether right or wrong. Having so failed, Plaintiffs cannot take advantage of the Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), tolling rule in order to make timely their belated effort to relitigate the issue of the validity of the class by filing a new complaint that contains fuller factual allegations and names more adequate class representatives. It is useful to remember that § 377 did not work a dramatic change in the law. The Supreme Court already had held that front-deskers had ripe claims but non-filers did not. The only change wrought by § 377 was to eliminate the possibility, skeptically noted by the Supreme Court in CSS III, that constructive front-deskers would have ripe claims. Thus, § 377 should not have caught the plaintiffs by surprise — it was hardly certain that a complaint alleging a class only of constructive front-deskers (which is what CSS V held that the plaintiffs had filed) would survive. It is unfortunate that the CSS V plaintiffs failed to name at least some front-deskers as class representatives in the wake of CSS III, but that omission is not of this court’s making. For the foregoing reasons, I concur in part and dissent in part. . Basch v. Ground Round, Inc., 139 F.3d 6 (1st Cir.1998); Griffin v. Singletary, 17 F.3d 356 (11th Cir.1994); Andrews v. Orr, 851 F.2d 146 (6th Cir.1988); Salazar-Calderon v. Presidio Valley Fanners Ass'n, 765 F.2d 1334 (5th Cir.1985); In re Westinghouse Securities Litigation, 982 F.Supp. 1031 (W.D.Pa.1997); In re Cypress Semiconductor Sec. Litig., 864 F.Supp. 957 (N.D.Cal.1994); Fleck v. Cablevision VII, Inc., 807 F.Supp. 824 (D.D.C.1992); Smith v. Flagship Int’l, 609 F.Supp. 58 (N.D.Tex.1985); Burns v. Ersek, 591 F.Supp. 837 (D.Minn.1984)." }, { "docid": "15084619", "title": "", "text": "found in Korivek that the statute of limitations is not tolled for a subsequent class action. The only circuit court opinion cited in Korwek on the point is Salazar-Calderon, which it misstated as holding that the “American Pipe tolling rule does not apply to permit putative class members to file a subsequent class action.” 827 F.2d at 878. The Second Circuit also relied on several district court opinions. The Second Circuit in Korwek provided the most detailed analysis of any circuit court denying tolling for class actions. Its survey of other case law found the “oft-repeated refrain which echoes through these cases compelling: the tolling rule established by American Pipe, and expanded upon by Crown, Cork & Seal, was not intended to be applied to suspend the running of statutes of limitations for class action suits filed after a definitive determination of class certification.” Id. at 879. The application of this “compelling” theme to the facts in Korwek led to a decision not to toll for class claims. In Korwek, the plaintiffs filed effectively the same complaint after their initial certification effort led to a narrower than hoped for class certification. The Second Circuit decided that the Supreme Court “certainly did not intend to afford plaintiffs the opportunity to argue and reargue the question of class certification by filing new but repetitive complaints.” Id. Korwek became the leading case on the issue, and several other circuits have followed Korwek with little additional comment. See, e.g., Robbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir.1987) (citing Korwek, Salazar-Calderon, and district court cases cited in Korwek); Andrews v. Orr, 851 F.2d 146, 149 (6th Cir.1988) (“The courts of appeals that have dealt with the issue appear to be in unanimous agreement that the pendency of a previously filed class action does not toll the limitations period for additional class actions by putative members of the original asserted class.”); Griffin v. Singletary, 17 F.3d 356, 359 (11th Cir.1994) (citing above cases and noting that after fifteen years of litigation, “we decline to adopt any rule that has the potential for prolonging litigation" }, { "docid": "7370413", "title": "", "text": "severely undermine the statute of limitations. See Basch v. Ground Round, Inc., 139 F.3d 6, 11 (1st Cir.1998) (“Permitting such tactics would allow lawyers to file successive putative class actions with the hope of attracting more potential plaintiffs and perpetually tolling the statute of limitations .... This simply cannot be what the American Pipe rule was intended to allow....”); Griffin v. Singletary, 17 F.3d 356, 359 (11th Cir.1994) (“The plaintiffs may not ‘piggyback one class action onto another’ and thereby engage in endless rounds of litigation.... [W]e decline to adopt any rule that has the potential for prolonging litigation about class representation even further.” (citation omitted and emphasis added)); Robbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir.1987) (“[T]o extend tolling to class actions ... ‘falls beyond [American Pipe’s] carefully crafted parameters into the range of abusive options.’ ” (citation omitted)); Andrews v. Orr, 851 F.2d 146, 149 (6th Cir.1988) (“These decisions reflect the concern ... [that] ‘[t]he tolling rule of American Pipe ... is a generous one, inviting abuse.’ ” (citation omitted)); Korwek v. Hunt, 827 F.2d 874, 879 (2nd Cir.1987) (tolling subsequent class actions “would be inimical to the purposes behind statutes of limitations and the class action procedure”); Salazar-Calderon v. Presidio Valley Farmers Ass’n, 765 F.2d 1334, 1351 (5th Cir.1985) (“Plaintiffs have no authority for their contention that putative class members may piggyback one class action onto another and thus toll the statute of limitations indefinitely, nor have we found any.”). Crown, Cork recognized that the plaintiffs’ interests must be balanced against those of the defendants, which includes an interest in repose. Tolling the limitations period a second, third or fourth time, dramatically shifts the balance of equities in favor of the plaintiffs-and against the de fendants-with respect to the period of repose. Every other circuit has concluded that, if the time limit has been tolled once, defendants’ interest in repose must prevail thereafter. Rather than articulating an argument to the contrary, the majority makes a convoluted but unsuccessful effort at distinguishing the other cases. The majority first tries to distinguish Robbin and Konoek based on" }, { "docid": "15084620", "title": "", "text": "same complaint after their initial certification effort led to a narrower than hoped for class certification. The Second Circuit decided that the Supreme Court “certainly did not intend to afford plaintiffs the opportunity to argue and reargue the question of class certification by filing new but repetitive complaints.” Id. Korwek became the leading case on the issue, and several other circuits have followed Korwek with little additional comment. See, e.g., Robbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir.1987) (citing Korwek, Salazar-Calderon, and district court cases cited in Korwek); Andrews v. Orr, 851 F.2d 146, 149 (6th Cir.1988) (“The courts of appeals that have dealt with the issue appear to be in unanimous agreement that the pendency of a previously filed class action does not toll the limitations period for additional class actions by putative members of the original asserted class.”); Griffin v. Singletary, 17 F.3d 356, 359 (11th Cir.1994) (citing above cases and noting that after fifteen years of litigation, “we decline to adopt any rule that has the potential for prolonging litigation about class representation even further”); Basch v. Ground Round, Inc., 139 F.3d 6, 11 (1st Cir.1998) (“Plaintiffs may not stack one class action on top of another and continue to toll the statute of limitations indefinitely. Permitting such tactics would allow lawyers to file successive putative class actions with the hope of attracting more potential plaintiffs and perpetually tolling the statute of limitations----”). In Yang, the Third Circuit persuasively criticized these courts’ approach as posing a risk that legitimate claims would be denied arbitrarily because of circumstances beyond the plaintiffs’ control: Drawing the line arbitrarily to allow tolling to apply to individual claims but not to class claims would deny many class plaintiffs with small, potentially meritorious claims the opportunity for redress simply because they were unlucky enough to rely upon an inappropriate lead plaintiff. For many, this would be the end result, while others would file duplicative protective actions in order to preserve their rights lest the class representative be found deficient under Rule 23. Either of these outcomes runs counter to the policy" }, { "docid": "22181960", "title": "", "text": "as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Id. at 554, 94 S.Ct. at 766 (footnote omitted). Later the Court applied this rule in a Title VII case and clarified the duration and effect of the tolling. Crown, Cork & Seal Co. v. Parker, 462 U.S. 346, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). There the Court stated that “[o]nce the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action.” Id. at 354, 103 S.Ct. at 2397-98 (emphasis added). B. We also agree with the district court’s conclusions concerning the plaintiffs’ attempt to gain classwide relief. The courts of appeals that have dealt with the issue appear to be in unanimous agreement that the pendency of a previously filed class action does not toll the limitations period for additional class actions by putative members of the original asserted class. See Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir.1987) (“The Supreme Court ... certainly did not intend to afford plaintiffs the opportunity to argue and reargue the question of class certification by filing new but repetitive complaints.”); Salazar-Calderon v. Presidio Valley Farmers Ass’n, 765 F.2d 1334, 1351 (5th Cir.1985), cert. denied, 475 U.S. 1035, 106 S.Ct. 1245, 89 L.Ed.2d 353 (1986) (“Plaintiffs have no authority for their contention that putative class members may piggyback one class action onto another and thus toll the statute of limitations indefinitely....”); Robbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir. 1987) (adopting reasoning of Korwek). These decisions reflect the concern expressed by Justice Powell, concurring separately in Crown, Cork & Seal: “The tolling rule of American Pipe [& Constr. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed. 2d 713 (1974)] is a generous one, inviting abuse.” 462 U.S. at 354, 103 S.Ct. at 2398. The plaintiffs make one contention that is" }, { "docid": "19065660", "title": "", "text": "regard to the Brown case. Id. Between July 26 and July 28, 1983, however, the Andrews plaintiffs, who were unnamed members of the Brown class, initiated the administrative process by contacting an EEO counselor, and they later filed suit. Id. Although the Andrews court did not elaborate on the district court’s analysis, the lower court’s opinion establishes that the court applied the 30-day limitations period for filing individual claims to the Andrews plaintiffs, even though they sought class-action relief under the 90-day limitations period. Andrews v. Orr, 614 F.Supp. 689, 691 (S.D.Ohio 1985). The court so held for two reasons. First, a federal regulation implicitly recognized that different members of the same putative class of federal employees could not repeatedly initiate class actions based on the same conduct. Id. at 691-92 (citing 29 C.F.R. § 1613.604(b)). Second, the court pointed to the Supreme Court’s statement in Croum, Cork & Seal that American Pipe tolling ends when class certification is denied, and thereafter, class members may file their own suits or intervene in the pending action. Id. The court looked to district court opinions in two other jurisdictions to support its conclusion “that the statute of limitations is not tolled for purposes of initiating a new class action.” Id. The Andrews court approved the district court’s reasoning with little analysis, quoting short excerpts from Robbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir.1987), Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir.1987), and Salazar-Calderon v. Presidio Valley Farmers Ass’n, 765 F.2d 1334, 1351 (5th Cir.1985) (Calderon I). Id. at 149. We will say more about these three cases later in this opinion. The Andrews court expressed a concern, similar to that voiced by Justice Powell in his concurrence in Croum, Cork & Seal, that the American Pipe tolling rule “is a generous one, inviting abuse.” Id. (citing 462 U.S. at 354, 103 S.Ct. 2392). Finally, the Andrews court affirmed the district court’s ruling that the plaintiffs’ individual claims were untimely filed, observing that “[e]ven if the Brown plaintiffs second motion for class certification somehow revived or reactivated tolling, it came" }, { "docid": "7555521", "title": "", "text": "at all in ADEA cases, not permit plaintiffs to stretch out limitations periods by bringing successive class actions. Plaintiffs may not stack one class action on top of another and continue to toll the statute of limitations indefinitely. Permitting such tactics would allow lawyers to file successive putative class actions with the hope of attracting more potential plaintiffs and perpetually tolling the statute of limitations as to all such potential litigants, regardless of how many times a court declines to certify the class. This simply cannot be what the American Pipe rule was intended to allow, and we decline to embrace such an extension of that rule. At least one of our sister circuits agrees. See Salazar-Calderon v. Presidio Valley Farmers Ass’n, 765 F.2d 1334, 1351 (5th Cir.1985) (“Plaintiffs have no authority for their contention that putative class members may piggyback one class action onto another and thus toll the statute of limitations indefinitely, nor have we found any.”). On closely related issues, each court of appeals to address the question has reasoned similarly and rejected efforts by late plaintiffs to resuscitate their claims through stacking of subsequent class actions. See Andrews v. Orr, 851 F.2d 146, 149 (6th Cir.1988) (class action tolls statute of limitations only for subsequent individual actions, not for subsequent class action alleging similar class and similar claims); Robbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir.1987) (same); Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir.1987) (same). The dangers which Justice Blackmun warned against in his concurring opinion in American Pipe are vividly demonstrated by plaintiffs’ theory. Justice Blackmun wrote separately to stress that the Court’s decision “must not be regarded as encouragement to lawyers in a ease of this kind to frame their pleadings as a class action, intentionally, to attract and save members of the purported class who have slept on their rights.” 414 U.S. at 561, 94 S.Ct. at 770 (Blackmun, J. concurring). This point was emphasized by Justice O’Connor in her Crown, Cork concurrence, in which she stated that “[t]he tolling rule of American Pipe is a generous one, inviting" }, { "docid": "3706897", "title": "", "text": "have been parties had the suit been permitted to continue as a class action.” Id. at 554, 94 S.Ct. at 766 (footnote omitted). After American Pipe, a split developed in the circuits as to whether tolling applied only to putative class members who sought to intervene after a denial of class certification or whether it also applied to any class member who later filed an individual action. Compare Parker v. Crown, Cork and Seal Co., 677 F.2d 391, 394 (4th Cir.1982) (tolling extends to all class members who later filed individual actions), aff'd 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), with Pavlak v. Church, 681 F.2d 617, 618 (9th Cir.1982) (tolling extends only to class members who intervened or attempted to intervene), vacated and remanded, 463 U.S. 1201, 103 S.Ct. 3529, 77 L.Ed.2d 1382 (1983). The Court resolved this split in Crown, Cork and Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), by holding that the filing of a class action tolled the applicable statute of limitations for all asserted members of the class, not just for intervenors. Id. at 353-54, 103 S.Ct. at 2397. Robbin asserts that the policy considerations underlying the tolling doctrines of American Pipe and Crown, Cork should be extended to include class members who file subsequent class actions. This position has been squarely rejected by several courts. See Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir.1987); Salazar-Calderon v. Presidio Valley Farmers Ass’n, 765 F.2d 1334, 1351 (5th Cir.1985), cert. denied, 475 U.S. 1035, 106 S.Ct. 1245, 89 L.Ed.2d 353 (1986); Andrews v. Orr, 614 F.Supp. 689, 692 (D.Ohio 1985); Smith v. Flagship Int’l, 609 F.Supp. 58, 63-64 (N.D.Tex.1985); Burns v. Ersek, 591 F.Supp. 837, 840 (D.Minn.1984). We see no reason to depart from the well-reasoned holdings of these cases. In Korwek the Second Circuit carefully evaluated the policy considerations of extending American Pipe and Crown, Cork to subsequently filed class action. Korwek, 827 F.2d at 879. The court concluded that “American Pipe and Crown, Cork represent a careful balancing of the interest of plaintiffs, defendants," }, { "docid": "9991408", "title": "", "text": "among the putative class members and that “a class action was not necessarily the superior method for handling the controversy.” Salazar-Calderon, 765 F.2d at 1350. Similarly, in the leading First Circuit case which followed Korwek and Salazar-Calderon, the refusal to allow tolling in sequential class actions was in the context of a district court having based its earlier denial of class certification on deficiencies in the class itself. See Basch v. Ground Round, Inc., 139 F.3d 6, 8 n. 4 (1st Cir.1998) (class members not “similarly situated” due to many factual differences between them); see also Andrews v. Orr, 851 F.2d 146, 149 (6th Cir.1988) (applying Korwek and Salazar-Calderon without noting the reason for the district court’s denial of class certification). The second approach, which only the Eleventh Circuit has taken, reads Korwek broadly to deny tolling to all sequential plaintiffs invoking the class action device, regardless of the reason class certification was denied in the earlier suit. In Griffin v. Singletary, 17 F.3d 356 (11th Cir.1994), which involved a district court’s denial of class certification for lack of a proper representative, the Eleventh Circuit cited Andrews, Korwek, Salazar-Calderon, and Robbin v. Fluor, 835 F.2d 213 (9th Cir.1987), for the proposition that at that time all Circuit courts agreed that a pending class action does not toll the limitations period for later class actions brought by putative members of the class denied certification earlier. Griffin, 17 F.3d at 359. The Eleventh Circuit continued, “The plaintiffs may not ‘piggyback one class action onto another,’ Salazar-Calderon, 765 F.2d at 1351, and thereby engage in endless rounds of litigation in the district court and in this Court over the adequacy of successive named plaintiffs to serve as class representatives.” Griffin, 17 F.3d at 359. As this Court stated in McKowan, “The Griffin Court does not appear to have distinguished between the Korwek line of cases where denial of tolling followed a decision rejecting the class action itself and the situation where no court has yet determined that the class action is inappropriate.” McKowan, 295 F.3d at 388. While Griffin’s denial of tolling for" }, { "docid": "19196416", "title": "", "text": "represent those with diploma claims, and we have already held that Smith did not have standing to represent those with testing claims, we affirm the order of the district court dismissing the diploma claim and vacating the order granting Smith intervention. A. THE NON-PIGGYBACK RULE FOR CLASS ACTIONS The Platt appellants contend that the district court erred in denying their motions to certify class actions. The district court held that “Plaintiffs may not piggyback one class action onto another and thus toll the statute of limitations indefinitely.” We agree. “The courts of appeals that have dealt with the issue appear to be in unanimous agreement that the pendency of a previously filed class action does not toll the limitations period for additional class actions by putative members of the original asserted class.” Andrews v. Orr, 851 F.2d 146, 149 (6th Cir.1988) (emphasis added) (citing Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir.1987); Salazar-Calderon v. Presidio Valley Farmers Ass’n, 765 F.2d 1334, 1351 (5th Cir.1985), cert. denied, 475 U.S. 1035, 106 S.Ct. 1245, 89 L.Ed.2d 353 (1986), and cert. denied, 493 U.S. 821, 110 S.Ct. 79, 107 L.Ed.2d 45 (1989); Robbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir.1987)). The plaintiffs may not “piggyback one class action onto another,” Salazar-Calderon, 765 F.2d at 1351, and thereby engage in endless rounds of litigation in the district court and in this Court over the adequacy of successive named plaintiffs to serve as class representatives. This case illustrates the wisdom of the rule against piggybacked class actions. Fifteen years after the Griffin lawsuit was filed, the class action issues are still being litigated, and we decline to adopt any rule that has the potential for prolonging litigation about class representation even further. B. THE PIGGYBACK RULE FOR INDIVIDUAL CLAIMS We turn now to the individual claims, to which different law is applicable. The district court dismissed the Platt plaintiffs’ individual claims because none of them had filed a timely charge of discrimination with the EEOC after receiving notice that they had failed the written examination. The court rejected the Platt plaintiffs’ argument" }, { "docid": "3706898", "title": "", "text": "limitations for all asserted members of the class, not just for intervenors. Id. at 353-54, 103 S.Ct. at 2397. Robbin asserts that the policy considerations underlying the tolling doctrines of American Pipe and Crown, Cork should be extended to include class members who file subsequent class actions. This position has been squarely rejected by several courts. See Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir.1987); Salazar-Calderon v. Presidio Valley Farmers Ass’n, 765 F.2d 1334, 1351 (5th Cir.1985), cert. denied, 475 U.S. 1035, 106 S.Ct. 1245, 89 L.Ed.2d 353 (1986); Andrews v. Orr, 614 F.Supp. 689, 692 (D.Ohio 1985); Smith v. Flagship Int’l, 609 F.Supp. 58, 63-64 (N.D.Tex.1985); Burns v. Ersek, 591 F.Supp. 837, 840 (D.Minn.1984). We see no reason to depart from the well-reasoned holdings of these cases. In Korwek the Second Circuit carefully evaluated the policy considerations of extending American Pipe and Crown, Cork to subsequently filed class action. Korwek, 827 F.2d at 879. The court concluded that “American Pipe and Crown, Cork represent a careful balancing of the interest of plaintiffs, defendants, and the court system.” Id. We agree with the Second Circuit that to extend tolling to class actions “tests the outer limits of the American Pipe doctrine and ... falls beyond its carefully crafted parameters into the range of abusive options.” Id. We therefore affirm the district court's dismissal of Robbin’s class action. Turning to Robbin’s individual action, the parties agree that the applicable limitation period is the three year period specified in Cal.Civ.Proc.Code § 338(4) (West 1982). See Board of Regents v. Tomanio, 446 U.S. 478, 485, 100 S.Ct. 1790, 1795, 64 L.Ed.2d 440 (1980) (when no statute of limitations period is specified in a federal statute, courts must look to state law to determine the applicable period). It appears that the federal tolling doctrine of American Pipe would permit Robbin’s individual action. The district court reasoned, however, that state tolling doctrines should apply. The court interpreted Chardon v. Fumero Soto, 462 U.S. 650, 103 S.Ct. 2611, 77 L.Ed.2d 74 (1983), to require the use of state tolling doctrines whenever state limitation periods are" } ]

[ { "docid": "22962012", "title": "", "text": "such complaints are written by laymen not versed either in the technicalities of pleading or the jurisdictional requirements of the Act. Some courts have recently recognized narrow exceptions to the strict requirement that each defendant must have been specifically named as the respondent in the EEOC charge where the defendant was informally referred to in the body of the charge, Shehadeh v. Chesapeake & Potomac Telephone Co., 193 U.S.App.D.C. 326, 595 F.2d 711 (D.C.Cir.1978); Eldredge v. Carpenters 46 Northern California Counties Joint Apprenticeship & Training Committee, 440 F.Supp. 506 (N.D.Cal.1977); Hanshaw v. Delaware Technical & Community College, 405 F.Supp. 292 (D.Del.1975), or where there is sufficient identity of interest between the respondent and the defendant to satisfy the intention of Title VII that the defendant have notice of the charge and the EEOC have an opportunity to attempt conciliation. Glus v. G. C. Murphy Co., 562 F.2d 880 (3d Cir. 1977); Williams v. Massachusetts General Hospital, 449 F.Supp. 55 (D.Mass.1978); Stringer v. Pennsylvania, 446 F.Supp. 704 (M.D.Pa.1978); Flesch v. Eastern Pennsylvania Psychiatric Institute, 434 F.Supp. 963 (E.D.Pa.1977). The court in Glus was convinced Congress did not intend that a complainant must ascertain at the time of filing charges each individual in a company who might be involved in the alleged discriminatory practices. Oftentimes such information would not be uncovered until the EEOC investigation. Although this court has not previously addressed the issue, we are inclined to agree that omission of a party’s name from the EEOC charge does not automatically mandate dismissal of a subsequent action under Title VII. Four factors are listed in Glus as pertinent to an evaluation of the failure to name a party before the EEOC: 1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its" } ]

[ { "docid": "18427005", "title": "", "text": "to defendant in the body of the charge, but did not place his name in the appropriate box, should preclude plaintiff from bringing this suit. In Glus v. Murphy, 562 F.2d 880, 887-888 (3d Cir.1977), the court cautioned that the “jurisdictional requirements for bringing suit under Title VII should be liberally construed.” It noted that the purpose behind the requirements of 42 U.S.C. § 2000e-5 are twofold: “to give notice to the charged party and provide an avenue for voluntary compliance without resort to litigation,” and that the sufficiency of the EEOC charge should be determined in light of these principles: The goal of conciliation without resort to the already overburdened federal courts is of great importance and should not be lost. However, equally important is the availability of complete redress of legitimate grievances without undue encumbrance by procedural requirements especially when demanding full and technical compliance would have no relation to the purposes for requiring those procedures in the first instance. Glus, supra, at 888. The court listed four factors that should be considered in determining whether a party’s failure to “name” a party before the EEOC precludes the party from maintaining the action in district court: 1. whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2. whether, under the circumstances, the interests of a named are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3. whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; and 4. whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. Glus, supra, at 888. After reviewing the circumstances of this ease in light of the purposes behind the administrative exhaustion requirements and the factors listed above, we conclude that we are able to retain jurisdiction over plaintiff’s claim against" }, { "docid": "5433449", "title": "", "text": "731 F.Supp. 1479, 1481 (D.Kan.1990); Scott v. City of Overland Park, 595 F.Supp. 520, 524-25 (D.Kan.1984). Further, both sides agree that the court, in evaluating the failure to name a party before the EEOC, should review the following factors: (1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; (2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unneces sary to include the unnamed party in the EEOC proceedings; (3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; (4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. Romero, 615 F.2d at 1312 (citation omitted). The parties diverge, however, in their analysis of the above-listed factors. Plaintiffs contend that Smith and Briley are proper defendants because they were mentioned in Pino’s EEOC affidavit. Further, plaintiffs contend that Smith and Briley have not been prejudiced by the fact that they were not specifically named as respondents in the EEOC charge. Finally, plaintiffs argue that it was logical for Pino to assume that the “relationship” between her and Smith and Briley was through Cigna. Smith and Briley, in contrast, contend that Pino could have named them as respondents because their roles in the alleged discrimination were reasonably ascertainable. Further, Smith and Briley argue that they were prejudiced because of the lack of opportunity to engage in conciliation. Finally, Smith and Briley allege that they never told Pino that it was unnecessary to name them as parties in her EEOC charge. Reviewing Pino’s EEOC charge in light of the Romero factors, the court finds that it has jurisdiction over Smith and Bri-ley. Admittedly, Smith and Briley were not named as respondents in Pino’s EEOC charge. However, they were specifically named in Pino’s affidavit in which she set forth" }, { "docid": "19105509", "title": "", "text": "the party before the EEOC, making possible effectuation of [Title VII]’s primary goal of securing voluntary compliance with its mandates.” Eggleston v. Chicago Journeymen Plumbers’ Local Union No. 130, 657 F.2d 890, 905 (7th Cir.1981), cert. denied, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982), cited in Vital v. Interfaith Medical Center, supra. The Circuit also explained that, because the administrative charges generally are filed “by parties not versed in the vagaries of Title VII and its jurisdictional and pleading requirements,” the courts recognize an exception to the exhaustion rule which permits a Title VII action to proceed against an unnamed party “where there is a clear identity of interest between the unnamed defendant and the party named in the administrative charge.” Johnson v. Palma, 931 F.2d 203, 209 (2d Cir.1991); see Vital, supra. The following four factors must be considered by the court in determining whether an identity of interest exists: 1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. Johnson v. Palma, supra at 209-10 (quoting Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir.1977)). In this case, it is clear from the pleadings that plaintiff failed to file an administrative complaint against CSEA Local 815, and that the EEOC did not mention Local 815 or any union officials in its Determination and Notice of Right to Sue (see EEOC Charge No. 165970066 and 2/18/99 Right-to-Sue letter, attached to Item 1). It is also clear that plaintiff was fully aware" }, { "docid": "913535", "title": "", "text": "Bronx Hospital and was a “posted position.” As such, it was not subject to the requirements of Section 85 and the procedures mandated by the Civil Service Law. Therefore, plaintiffs claim based on a violation of New York Civil Service Law Section 85 is dismissed with prejudice. TITLE VII The heart of plaintiffs complaint is his Title VII claim. In order to bring a claim under Title VII, the person must first file a complaint with the EEOC and receive either a decision or a right to sue letter. In this case, plaintiff properly brought an action before the EEOC, alleging discrimination based on race and national origin, which then referred the action to the New York State Commission on Human Rights. In his complaint to the EEOC, however, plaintiff named only Bronx Hospital as a defendant. The City asserts that, because plaintiff failed to name it in the EEOC complaint, the Title VII claim against The City must fail as a matter of law. Although filing a complaint with the EEOC is normally a prerequisite to commencing a Title VII action against a defendant, see 42 U.S.C. § 2000e-5(e)(1), courts have recognized an exception to this requirement when the named and unnamed parties have an “identity of interest.” Johnson v. Palma, 931 F.2d 203, 209 (2d Cir.1991). In determining whether there is such an identity of interest, the Court must consider four factors: 1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. Id. at 209-10" }, { "docid": "17520696", "title": "", "text": "1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. Consideration of these factors should be initially in the hands of the district court. The goal of conciliation without resort to the already overburdened federal courts is of great importance and should not be lost. However, equally important is the availability of complete redress of legitimate grievances without undue encumbrance by procedural requirements especially when demanding full and technical compliance would have no relation to the purposes for requiring those procedures in the first instance. In our view the district court should evaluate the failure to name the party before the EEOC by consulting the four factors discussed supra. In this case, plaintiff Bosworth named as respondents in her EEOC charge the State of Maryland, City of Baltimore, and the Civil Service Commission of Baltimore. Plaintiff Nixon named as respondent only the Baltimore City Police Department. Accordingly, in this consolidated proceeding, in which each of the individual defendants has been sued only in his or her official capacity, it would appear that the only defendants in this proceeding not specifically named in EEOC proceedings are defendants Pomerleau and Rowlett. It has not been asserted that either of those defendants lacked actual notice of plaintiffs’ charges filed with the EEOC, or that the EEOC’s actions with regard to conciliation of those charges were in any way affected by plaintiffs’ failure to have named such defendants. Indeed, it is rather clear that both Pomerleau and Rowlett knew of the EEOC" }, { "docid": "8659196", "title": "", "text": "42 U.S.C. § 2000e(b) (including in the definition of employer any agent of the employer). Plaintiff filed a complaint with the Connecticut CHRO. She also filed a complaint with the EEOC, which incorporated by reference the CHRO complaint, and obtained a Notice of the Right to Sue from the EEOC. Generally, an action under Title VII can proceed only against those individuals named as respondents in the complaint filed with the EEOC. 42 U.S.C. § 2000e-5(f)(l). The purpose of this exhaustion requirement is to provide notice to those alleged to have committed the violations and to provide an opportunity for the parties to comply voluntarily with the requirements of Title VII. Alvarado v. Board of Trustees of Montgomery Comm. College, 848 F.2d 457, 461 (4th Cir.1988); Garcia v. Gardner’s Nurseries, Inc., 585 F.Supp. 369, 373 (D.Conn.1984). A limited exception to the exhaustion requirement permits an action against a party not named as a respondent in the EEOC complaint if the underlying dual purposes of the exhaustion requirement are otherwise satisfied. Alcena v. Raine, 692 F.Supp. 261, 269 (S.D.N.Y.1988). Specifically, the factors to be considered under this exception are 1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. Garcia, 585 F.Supp. at 369 (quoting Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir.1977), vacated and remanded on other grounds, 451 U.S. 935, 101 S.Ct. 2013, 68 L.Ed.2d 321 (1981)). Plaintiffs complaint filed with the CHRO and by incorporation with the EEOC listed only National Graphics and" }, { "docid": "22770820", "title": "", "text": "alleged violation and also brings the party before the EEOC, making possible effectuation of the Act’s primary goal of securing voluntary compliance with its mandates.” Eggleston v. Chicago Journeymen Plumbers’ Local Union No. 130, 657 F.2d 890, 905 (7th Cir.1981), cert. denied, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982). “Because these charges generally are filed by parties not versed in the vagaries of Title VII and its jurisdictional and pleading requirements,” we recognized an “identity of interest” exception to this rule in Johnson v. Palma, 931 F.2d 203, 209 (2d Cir.1991). That exception “permits a Title VII action to proceed against an unnamed party where there is a clear identity of interest between the unnamed defendant and the party named in the administrative charge.” Id. Following the Third Circuit’s lead, we consider four factors in determining whether an identity of interest exists: 1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. Id. at 209-10 (quoting Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir.1977)); see also Eggleston, 657 F.2d at 905 (“[W]here an unnamed party has been provided with adequate notice of the charge, under circum stances where the party has been given the opportunity to participate in conciliation proceedings aimed at voluntary compliance, the charge is sufficient to confer jurisdiction over that party.”)- In Johnson, we determined that dismissal was appropriate because these factors indicated no identity of interest and the unnamed party had not received notice of the charge" }, { "docid": "22475408", "title": "", "text": "the defendant. 42 U.S.C. § 2000e-5(e). Because these charges generally are filed by parties not versed in the vagaries of Title VII and its jurisdictional and pleading requirements, we have taken a “flexible stance in interpreting Title VII’s procedural provisions,” Egelston v. State University College at Geneseo, 535 F.2d 752, 754, 755 (2d Cir.1976), so as not to frustrate Title VII’s remedial goals. Thus, courts have recognized an exception to the general rule that a defendant must be named in the EEOC complaint. Eggleston v. Chicago Journeymen Plumbers’ Local Union No. 130, 657 F.2d 890, 905-06 (7th Cir.1981), cert. denied, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982). This exception, termed the “identity of interest” exception, permits a Title VII action to proceed against an unnamed party where there is a clear identity of interest between the unnamed defendant and the party named in the administrative charge. See, e.g., Romain v. Kurek, 836 F.2d 241, 245-46 (6th Cir.1987) (per curiam); Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir.1977); Maturo v. National Graphics, Inc., 722 F.Supp. 916, 925 (D.Conn.1989); Garcia v. Gardner’s Nurseries, Inc., 585 F.Supp. 369, 372 (D.Conn.1984). In Glus, the Third Circuit developed a four part test to determine whether an “identity of interest” exists, thereby excusing a Title VII plaintiff’s failure to name a defendant in the EEOC complaint. The four factors are 1) whether the role of the unnamed party could throügh reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unneces sary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual, prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. Glus, 562 F.2d at 888. Applying" }, { "docid": "10626571", "title": "", "text": "as a defendant in the plaintiffs’ Title VII lawsuit because the plaintiffs failed to name him as a respondent in their Equal Employment Opportunity Commission (EEOC) charges. Although only Kodak and Yourdon are named as respondents in the plaintiffs’ EEOC charges, each charge contains allegations that Cash sexually harassed the plaintiffs and that, as their supervisor, Cash failed to prevent defendant Offenhartz, a Yourdon employee, from sexually harassing the plaintiffs. Title VII provides that a complainant who files a charge with the EEOC may bring a civil action against the respondents named in that charge within ninety days after the EEOC or the analogous state agency issues a notice of the right to sue. 42 U.S.C. § 2000e-5(f)(l). As a result of this provision, a district court generally has subject matter jurisdiction only over actions against those individuals named as respondents in an EEOC charge. Johnson v. Palma, 931 F.2d 203, 209 (2d Cir.1991); Gilmore v. Local 295, 798 F.Supp. 1030, 1037 (S.D.N.Y.1992) (Goettel, J.); Streeter v. Joint Indust. Bd. of Elec. Indus., 767 F.Supp. 520, 523 (S.D.N.Y.1991) (Wood, J.). However, the courts have adopted a flexible approach toward interpreting Title VII’s procedural requirements. See Egelston v. State Univ. College, 535 F.2d 752, 754-55 (2d Cir.1976). In keeping with this flexibility, the Second Circuit has recognized an “identity of interest” exception to the general rule that a defendant must first be named as a respondent in an EEOC charge. Johnson, 931 F.2d at 209. The following four factors must be considered in determining whether to apply the exception: 1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some" }, { "docid": "12720499", "title": "", "text": "at securing voluntary compliance with the Act. Id. Conciliation is a primary goal of Title VII and provides an avenue for compliance without the resort to the expense and inconvenience of litigation. The failure to name a Title VII defendant as a respondent in the EEOC charge will be excused if an “identity of interest” is found to exist between the named and unnamed parties. The “identity of interest” exception acknowledges the reality that laymen, unassisted by trained lawyers, initiate the process of filing a charge with the EEOC, and accordingly prevents frustration of the remedial goals of Title VII by not requiring procedural exactness in stating the charge. Courts generally find an identity of interest where the unnamed party has been provided with adequate notice of the charge under circumstances which afford him an opportunity to participate in conciliation proceedings aimed at voluntary compliance. Eggleston, 657 F.2d at 905. As one court observed: A suit is not barred 'where there is sufficient identity of interest between the respondent and the defendant to satisfy the intention of Title VII that the defendant have notice of the charge and the EEOC have an opportunity to attempt conciliation.’ Greenwood v. Ross, 778 F.2d 448, 451 (8th Cir.1985) (quoting Romero v. United Pacific R.R., 615 F.2d 1303, 1311 (10th Cir.1980)). In Glus v. G.C. Murphy Co., 562 F.2d 880 (3d Cir.1977), the Third Circuit developed a useful test for determining whether an identity of interest exists so as to excuse a Title VII plaintiff’s failure to name a defendant in the EEOC charge. That test, which is made up of four factors, looks at the relationship between the named and unnamed parties at the time the charge is filed and conciliation efforts occur: (1) [W]hether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; (2) [W]hether, under the circumstances, the interests of a named are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include" }, { "docid": "18414809", "title": "", "text": "(3rd Cir. 1977). The Court of Appeals for the Tenth Circuit held in Romero v. Union Pacific Railroad, 615 F.2d 1303 (10th Cir. 1980), where appellant challenged subject matter jurisdiction over individual defendants not named in the EEOC charges, that judicially created narrow exceptions to the requirement exist “where the defendant was informally referred to in the body of the charge ... or where there is a sufficient identity of interest between the respondent and the defendant to satisfy the intention of Title VII that the defendant have notice of the charge and that EEOC have an opportunity to attempt conciliation.” (citations omitted). That court adopted as criteria for subject matter jurisdiction over a defendant the four factors identified by the Court of Appeals for the Third Circuit in Glus v. G. C. Murphy Co., 562 F.2d 880, 888 (3rd Cir. 1977), viz.: (1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; (2) whether under the circumstances, the interests of a named are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceeding; (3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; (4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. In the ease of McNear the only question which the court can answer in defendant’s favor is the first one. Not only was McNear informally referred to in the body of the charge in fact but his actions were the basis for plaintiff’s discrimination claim against Merrill Lynch, the charged respondent. Courts have found jurisdiction over an unnamed defendant where it is “named in the factual statement in sufficiently specific terms to apprise the EEOC of the source of the alleged discrimination .. .,” Eldredge v. Carpenters 46 Northern California Counties Joint Apprenticeship & Training" }, { "docid": "6686443", "title": "", "text": "plaintiffs Title VII claim as a consequence of plaintiffs failure to name him as a respondent in her formal discrimination charge. Plaintiffs discrimination charge named only the Cheyenne Police Department as a respondent and the right to sue letter was directed to the Police Department alone. Renner claims that he cannot be sued under Title VII until a right to sue letter has been issued as to him. He further contends that he has been prejudiced by the inability to participate in the EEOC investigation and because he was deprived of the right to conciliate. The filing of a timely charge of discrimination with the EEOC is a jurisdictional prerequisite to the initiation of a lawsuit. A respondent must be named in the charge before he can be sued. 42 U.S.C. § 2000e — 5(f)(1). The purpose of the naming requirement is twofold: (1) it provides the defendant with notice that his actions are the subject of an investigation; and (2) it provides the defendant with an opportunity to participate in the conciliation process before the EEOC. Notwithstanding this jurisdictional requirement, because such complaints are written by laymen not versed either in the technicalities of pleading or the jurisdictional requirements of the Act, complaints to the EEOC are to be liberally construed in order to accomplish the purposes of the Act. Romero v. Union Pacific Railroad, 615 F.2d 1303, 1311 (10th Cir.1980). In Romero, the Tenth Circuit held that the omission of a party’s name from the EEOC charge does not automatically mandate dismissal of a subsequent action under Title VII. The Court must evaluate the failure to name a party before the EEOC by considering the following factors: 1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named party are so similar as an unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its" }, { "docid": "19130720", "title": "", "text": "jurisdiction over DCAG, NAH and Stoekl because he did not name them in the charge he filed with the EEOC. As a general rule, a court lacks jurisdiction to hear a civil action against a party that was not already named in an EEOC charge. See 42 U.S.C. § 2000e-5(b); Alcena v. Raine, 692 F.Supp. 261, 269 (S.D.N.Y.1988); Campbell v. International Brotherhood of Teamsters, 69 F.Supp.2d 380, 387 (E.D.N.Y. 1999). The purpose of this requirement is to give defendants adequate notice of the claims and an opportunity to voluntarily comply with Title VII’s strictures. See Alcena, 692 F.Supp. at 269. Failure to name a defendant in an EEOC charge, however, does not prohibit a plaintiff from asserting claims made under 42 U.S.C. § 1981 that may be based on the same core events. See Stewart v. Wappingers Central Sch. Dist., 437 F.Supp. 250, 253 (S.D.N.Y.1977) (citing Johnson v. Railway Express Agency, 421 U.S. 454, 460-61, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) and Gresham v. Chambers, 501 F.2d 687 (2d Cir.1974)). However, if there is an “identity of interest as between the parties” then a Court may overlook a plaintiffs failure to comply with the EEOC filing requirement. See Johnson v. Palma, 931 F.2d 203 (2d Cir.1991). The Second Circuit instructed Courts, in determining whether a plaintiff qualifies under the “identity of interest” exception, to consider four factors: “1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interest of a named [party] are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.” Id. at 209-10 (quoting Glus v. G.C. Murphy Co.," }, { "docid": "9720035", "title": "", "text": "sued under Title VII. The Third Circuit looks at whether the party that appeared before EEOC adequately represented the unnamed party’s interests. In Glus v. G.C. Murphy Co., 562 F.2d 880 (3d Cir.1977), the court set out a four-part test to determine whether there was sufficient identity-of-interest between the named and the unnamed party so that the unnamed party could be sued in court despite not being named in the charge: 1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named are so similar as the unnamed party’s that for the purpose of obtaining voluntary concilia tion and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. Id. at 888 (internal line breaks added). The Seventh Circuit, while accepting the Third Circuit’s Glus test, has also recognized that certain parties with actual notice of the EEOC proceedings may also be sued. See, e.g., Eggleston, 657 F.2d at 905-07. The Seventh Circuit justifies the actual notice exception on the grounds that the named-party requirement is meant to “give[ ] the employer some warning of the conduct about which the employee is aggrieved and afford[] the EEOC and the employer an opportunity to attempt conciliation without resort to the courts.” Alam v. Miller Brewing, 709 F.3d 662, 666 (7th Cir.2013) (internal quotation marks omitted). As such, if “an unnamed party has been provided with adequate notice of the charge, under circumstances where the party has been given the opportunity to participate in conciliation proceedings aimed at voluntary compliance,” the purpose of the named-party requirement has been accomplished, and “the charge is sufficient to confer jurisdiction over that party.” Eggleston, 657 F.2d at 905. The Ninth" }, { "docid": "15357283", "title": "", "text": "attempt conciliation. Glus v. G.C. Murphy Co., 562 F.2d 880 (3d Cir.1977); Williams v. Massachusetts General Hospital, 449 F.Supp. 55 (D.Mass.1978); Stringer v. Pennsylvania, 446 F.Supp. 704 (M.D.Pa.1978); Flesch v. Eastern Pennsylvania Psychiatric Institute, 434 F.Supp. 963 (E.D.Pa.1977). The court in Glus was convinced Congress did not intend that a complainant must ascertain at the time of filing charges each individual in a company who might be involved in the alleged discriminatory practices. Oftentimes such information would not be uncovered until the EEOC investigation. Although this court has not previously addressed the issue, we are inclined to agree that omission of a party’s name from the EEOC charge does not automatically mandate dismissal of a subsequent action under Title VII. Four factors are listed in Glus as pertinent to an evaluation of the failure to name a party before the EEOC: 1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. 562 F.2d at 888. Depending on the facts, additional factors may be relevant. Romero v. Union Pacific Railroad, 615 F.2d 1303, 1311-12 (10th Cir.1980). This court believes that, unless the “narrow exceptions” were meant to swallow up the general rule, enforcement of the requirement of naming defendants in Title VII and ADEA suits as respondents in EEOC charges is necessary in cases such as this. Here, counsel for plaintiff filed the EEOC charge. Thus, one of the reasons for the exceptions described in Glus v. G.C. Murphy Co., supra, (i.e., the protection of complainants filing charges without" }, { "docid": "18414808", "title": "", "text": "to dismiss the pendant state claims on the same grounds as does McNear. For the reasons set out herein defendants’ Motions to Dismiss are GRANTED. I. McNear argues that 42 U.S.C. § 2000e-5(f)(l) (1972) provides a charging party may sue only the respondent named in the EEOC charge, because a party not named could not participate in conciliation procedure. It is obvious, however, that in this case McNear was investigated by the EEOC as a result of plaintiff’s charge against Merrill Lynch, that he consequently had notice of the suit and an opportunity to conciliate. Although the filing of a charge with EEOC is a jurisdictional prerequisite to a suit under Title VII of the Civil Rights Act, “the courts have developed a multiplicity of means to circumvent this jurisdictional requirement.” 2 Larson, Employment Discrimination § 49.42, at 9B-71 (1981). In this ease “[Djemanding full and technical compliance would [not] have . .. relation to the purposes for requiring those procedures in the first instance.” Glus v. G. C. Murphy Co., 562 F.2d 880, 888 (3rd Cir. 1977). The Court of Appeals for the Tenth Circuit held in Romero v. Union Pacific Railroad, 615 F.2d 1303 (10th Cir. 1980), where appellant challenged subject matter jurisdiction over individual defendants not named in the EEOC charges, that judicially created narrow exceptions to the requirement exist “where the defendant was informally referred to in the body of the charge ... or where there is a sufficient identity of interest between the respondent and the defendant to satisfy the intention of Title VII that the defendant have notice of the charge and that EEOC have an opportunity to attempt conciliation.” (citations omitted). That court adopted as criteria for subject matter jurisdiction over a defendant the four factors identified by the Court of Appeals for the Third Circuit in Glus v. G. C. Murphy Co., 562 F.2d 880, 888 (3rd Cir. 1977), viz.: (1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; (2) whether under the circumstances," }, { "docid": "14887286", "title": "", "text": "by Title VII. Accordingly, defendants’ motion to dismiss the complaint based on this ground must fail. B. Failure to Name Individual Defendants in the Human Rights Complaint The Supreme Court has unequivocally stated that “technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.” Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972). Accordingly, courts have encouraged a “flexible stance in interpreting Title VU’s procedural provisions.” Egelston v. State University College, 535 F.2d 752, 755 (2d Cir.1976). As a general rule, individuals not named as respondents in an administrative charge cannot be sued in a subsequent Title VII action. Poulsen v. City of North Tonawanda, 811 F.Supp. 884, 891 (W.D.N.Y.1993). Using the flexible approach, the Second Circuit adopted the “identity of interest” exception to the general rule. Johnson v. Palma, 931 F.2d 203 (2d Cir.1991). The exception allows a Title VII action to proceed against an unnamed party where there is a clear identity of interest between the unnamed defendant and the party named in the administrative charge. Id. at 209. According to Johnson, four factors should be applied in determining the identity of interest: 1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar to as the unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. Id. at 209-210 (quoting Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3rd Cir.1977)). In the present ease, plaintiff cannot claim ignorance of the individual defendants’ role in the alleged discrimination because both DiGiaeomo and" }, { "docid": "16304194", "title": "", "text": "Here, plaintiff argues that he should be permitted to proceed with his Title VII cause of action against the unnamed corporate defendants — namely CS, SAC, and SASI — because there is an identity of interest between those unnamed defendants and defendant CSAM. Plaintiffs argument is inapposite. The “identity of interest” exception is intended to protect parties “not versed in the vagaries of Title VII and its jurisdictional and pleading requirements.” Id. Thus, as a threshold matter, the exception “only applies where plaintiff [was] not represented by counsel” at the time of the EEOC filing. Sharkey v. Lasmo (Aul Ltd.), 906 F.Supp. 949, 954 (S.D.N.Y.1995). See also Alfano v. Costello, 940 F.Supp. 459, 465 n. 2 (N.D.N.Y. 1996) (identity of interest exception “provides leniency to individuals filing EEOC complaints pro se ”). It is undisputed that plaintiff was represented by counsel with regard to his EEOC complaint. Accordingly, plaintiff does not meet this threshold requirement. However, even if plaintiff had filed his EEOC charge pro se, the facts of this case do not weigh in favor of granting plaintiff the benefit of the “identity of interest” exception. To determine whether an identity of interest exists, thereby excusing a plaintiffs failure to name a defendant in the EEOC complaint, the court must consider the following four factors: “1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.” Johnson, 931 F.2d at 209 (quoting Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir.1977)). Applying these four factors" }, { "docid": "6686444", "title": "", "text": "the EEOC. Notwithstanding this jurisdictional requirement, because such complaints are written by laymen not versed either in the technicalities of pleading or the jurisdictional requirements of the Act, complaints to the EEOC are to be liberally construed in order to accomplish the purposes of the Act. Romero v. Union Pacific Railroad, 615 F.2d 1303, 1311 (10th Cir.1980). In Romero, the Tenth Circuit held that the omission of a party’s name from the EEOC charge does not automatically mandate dismissal of a subsequent action under Title VII. The Court must evaluate the failure to name a party before the EEOC by considering the following factors: 1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named party are so similar as an unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; and 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. Id. at 1311-12. In the present case, plaintiff completed a detailed Intake Questionnaire for the Wyoming Department of Employment Fair Employment Program on June 7, 1991. She expressly identified Sgt. David Renner in the Intake Questionnaire as the person who had taken discriminatory action against her. However, she listed the Police Department as the “employer or organization” about which she was complaining and she provided a detailed description of her complaints against the Police Department including its failure to grant her requests for vacation time off, worker’s compensation, leave without pay, reimbursement for psychotherapy and medical bills, psychoanalysis for Sgt. Renner, and reassignment to a work shift other than the same shift as Renner. Plaintiffs official discrimination charge, although completed by Wyoming Fair Employment Practices Commission officials, was reviewed, amended, and executed" }, { "docid": "3228570", "title": "", "text": "the state administrative procedures].” Kremer, 456 U.S. at 485, 102 S.Ct. at 1899. Pittman was afforded a full and fair opportunity to litigate her claim. It is therefore not a violation of her due process rights to accord the final determination of the DCR, and the Appellate Division decision affirming that determination, preclu-sive effect. The claim by Pittman against Immunomedics is dismissed under claim preclusion principles. Parker and Newman argue the complaint against them must be dismissed because Pittman did not name them in the DCR Charges and therefore did not exhaust her administrative remedies as is required by Title VII as a condition for bringing a federal court action. They argue that this court therefore does not have jurisdiction over Pittman’s claims against them. The Supreme Court has held that compliance with the filing period requirement is not a jurisdictional prerequisite to bringing an action in federal court. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 102 S.Ct. 1127, 1135, 71 L.Ed.2d 234 (1982). However, a complainant must have exhausted his or her administrative remedies against a particular defendant before there is subject matter jurisdiction over a complaint against that defendant. Glus v. G.C. Murphy Co., 562 F.2d 880, 885-888 (3d Cir.1977); Acampora v. Boise Cascade Corp., 635 F.Supp. 66, 70-71 (D.N.J.1986). Because the purposes of the exhaustion requirement are to give notice to the charged party and to provide an avenue for voluntary compliance without resort to litigation, Glus, 562 F.2d at 888, a court may make an exception to the exhaustion requirement after considering: (1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; (2) whether, under the circumstances, the interests of a named party are so similar as the unnamed party’s that for purposes of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; (3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; and (4) whether the unnamed" } ]

[ { "docid": "16871239", "title": "", "text": "MAGRUDER, Chief Judge. Appellants are executors of the estate of Mary A. van Beuren, a resident of Rhode Island, who died in 1951. Upon examination of the estate tax return filed by the executors, the Commissioner assessed deficiencies in estate tax, one of which was based upon his determination that there should have been included in decedent’s gross estate, pursuant to § 811(d)(2) of the Internal Revenue Code of 1939, the value at the date of her death of the income to be derived from a certain inter vivos trust established by decedent on April 19, 1932. The executors paid the assessed deficiencies and filed claims for refund, which the Commissioner denied on March 7, 1957. Thereafter, the executors duly filed the present complaint in the United States District Court for the District of Rhode Island seeking recovery of the sums asserted to be due in the claims for refund. Named as defendants were the former Acting Collector of Internal Revenue and the District Director of Internal Revenue. As to certain items, the Commissioner conceded that the plaintiffs were entitled to a refund; and so the district judge gave judgment for the plaintiffs in the sum of $68,235.39, which was the total of the conceded items. But the Commissioner maintained the correctness of his determination as to the inclusion of the trust income, the one issue now in dispute, and the district judge, agreeing with the Commissioner, refused to give plaintiffs judgment for the greater amount claimed in their complaint, and entered a judgment dismissing the complaint “as to any relief in excess of the sum of $68,235.39, together with interest, as provided by law”. The plaintiff executors then took the present appeal from the aforesaid judgment. In enacting § 811(d)(2), the Congress was concerned to prevent an avoidance of the estate tax by the device of creating an inter vivos trust that purported to give away an interest, but where the grantor reserved in his own hands certain threads of control which rendered the gift in effect ambulatory until the date of the grantor’s death. Section 811(d)(2) is sweeping," } ]

[ { "docid": "21179241", "title": "", "text": "* * that * * * paragraph Fifth of the * * * living trust was intended by the settlor, * * *, to mean only that distributions might be made to his wife and two daughters from the corpus of the trust if, but only if, such use of the corpus were required to maintain them in the conservative mode of living to which they had been accustomed during his lifetime, and that as used by Mr. Powell the word ‘happiness’ in the phrase ‘maintenance, welfare, comfort or happiness’ was intended to and must be equated with basic maintenance and welfare, not with ‘pleasure’ or subjective ‘delight.’ ” Section 811 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 811, in part provides: “§ 811. Gross estate “The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated, * * *. ****** “(d) Revocable transfers ****** “(2) Transfers on or prior to June 22, 1936. To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke, * * The court concluded that the investment powers and the power to invade the corpus did not reserve to the settlor power to “alter, amend, revoke, or terminate” the trust within the meaning of § 811(d) (2) of the Internal Revenue Code of 1939 and that the deficiency was improperly determined. The contentions of counsel for the United States are: 1. The decedent’s power to invest in life insurance or annuities constituted power to alter or amend the corpus of the trust, within the meaning of § 811(d) (2); 2. The decedent’s power to invade the trust corpus for the benefit of his family’s “happiness” constituted a power to alter and" }, { "docid": "21217925", "title": "", "text": "were applicable, but held that the amount includible in the gross estate was only the value of the stock originally transferred by Fabrice to the trusts ($90,600) and did not include accumulated income and property purchased with accumulated income ($186,141.16). It relied on our decision in Commissioner of Internal Revenue v. McDermott’s Estate, 7 Cir., 222 F.2d 665, 55 A.L.R.2d 410 (1955). The parties in this case agree that the judgment entered by the district court conforms with our holding in McDermott’s Estate. However, defendant asks us to reject McDermott’s Estate on the authority of Reinecke v. Northern Trust Co., 278 U.S. 339, 345, 49 S.Ct. 123, 73 L.Ed. 410; Commissioner of Internal Revenue v. Estate of Church, 335 U.S. 632, 644-646, 69 S.Ct. 322, 93 L.Ed. 288, and other cases. After citing our holding in Commissioner of Internal Revenue v. Gidwitz’ Estate, 7 Cir., 196 F.2d 813, we said, in McDermott’s Estate, 222 F.2d at 667-668: “ * * * The accumulations there involved, as in the instant case, were not part of the property transferred and were, therefore, not ineludible. The Commissioner in his attempt to escape our holding in Gidwitz argues that here ‘the transfers were not complete until taxpayer’s [decedent’s] death since the property transferred is includible in his estate by reason of retained powers to designate who shall enjoy, under Code Section 811(c) (1) (B), and to change the enjoyment of the trust estate through a power to alter, amend or revoke, under Code Section 811(d) (1).’ We think this attempted distinction is without merit. The transfer in the instant case was as complete as it was in the Gidwitz case. The trusts were irrevocable, with no power reserved in the settlor or trustee to revoke, change or modify the terms of the trusts for his benefit or in a manner by which he could ever acquire any interest in either the corpus or the income therefrom. He received the dividends (accumulations) on the trust corpus (corporate stock) solely in his capacity as a trustee. He was without power or right to receive such dividends" }, { "docid": "11152986", "title": "", "text": "simply — decedent owned no more than a life estate, could not transfer any part of the corpus, and Allen received no more than the interest transferred. And, a taxpayer is, of course, entitled to use all proper means to reduce his tax liability. See Cravens v. C. I. R., 10 Cir., 272 F.2d 895, 898. It would thus seem to follow that the consideration was adequate, for it was in fact more than the value of the life estate. And, as a practical matter, it would have been virtually impossible to sell the life estate for an amount equal to her share in the corpus. Cf. Sullivan’s Estate v. C. I. R., 9 Cir., 175 F.2d 657. • It does not seem plausible, however, that Congress intended to allow such an easy avoidance of the taxable incidence befalling reserved life estates. This result would allow a taxpayer to reap the benefits of property for his lifetime and, in contemplation of death, sell only the interest entitling him to the income, thereby removing all of the property which he has enjoyed from his gross estate. Giving the statute a reasonable interpretation, we cannot believe this to be its intendment. It seems certain that in a situation like this, Congress meant the estate to include the corpus of the trust or, in its stead, an amount equal in value. I. e., see Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604; C. 1. R. v. Wemyss, 324 U.S. 303, 65 S.Ct. 652, 89 L.Ed. 958; C. I. R. v. Estate of Church; 335 U.S. 632, 69 S.Ct. 322, 93 L.Ed. 288. The judgment of the trial court is therefore reversed and the case is remanded for further proceedings in conformity with the opinion filed herein. . Decedent died and the controversy arose prior to adoption of the 1954 Internal Revenue Code. Therefore, the 1939 Code is applicable and pertinently provides: “§ 811. Gross Estate The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all" }, { "docid": "17802289", "title": "", "text": "gross estate is supported by respondent’s third and final argument that enjoyment of the corpus transferred in trust was subject to change through exercise of power by the decedent to alter, amend, revoke, or terminate, section 811 (d) (1) of the Code and Eegulations 105, section 81.20. The respondent’s position in reliance on section 811 (d) (1) must fail for the same reason that his second argument failed. In Jennings v. Smith, suyra, respondent’s reliance on both section 811 (c) and section 811 (d) (1) was considered by the court of appeals. The power of decedent Jennings over the corpus of the trust was restricted by the trust indenture to such an extent that the court held that the trust indenture contained an external standard. The restrictions of the grantors upon the trustees of the Wier trusts were not unlike those in Jennings v. Smith, sufra, and those we considered in Estate of C. Dudley Wilson, 13 T. C. 869, affd. per curiam, 187 F. 2d 145, where the standard was such as to make the action of the trustee subject to court control. In the latter case where decedent who was not a trustee and who had expressly relinquished all interest in the trust property and divested himself of all incidents of ownership, we held that he had no power to terminate the trust despite his retained power to change the trustee and the trustee’s discretion to “accelerate payments of interest or principal in case of need for educational purposes or because of illness or for any other good reason” and that the value of the trust corpus was not includible in decedent’s gross estate under section 811 (d). This latter case reviews the authorities which we think are applicable here and are controlling here as they were in the Wilson case, supra. See Estate of Milton J. Budlong, supra, where decedent’s power as trustee to invade corpus was subject to a definite standard: sickness or other emergency of the beneficiary. An entirely different standard was established in the trust indentures in Estate of Cyrus C. Yawkey, supra, relied" }, { "docid": "13108164", "title": "", "text": "property, or (ii) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom; or * * . 2G U.S.C. § 811(d) (1) provides: “(d) Revocable transfers “(1) Transfers after Juno 22, 1986. To the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona-fide sale for an adequate and full consideration in money or money’s worth), by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power (in whatever capacity exercisable) by the decedent alone or by the decedent in conjunction with any other person (without regard to when or from what source the decedent acquired such power), to alter, amend, revoke, or terminate, or where any such power is relinquished in contemplation of decedent’s death; * * . 20 CFR 81.20(e) provides: “The provisions of this section do not apply to a transfer if the power may be exercised only with the consent of all parties having an interest, vested or contingent, in the transferred property, and if the power adds nothing to the rights of the parties as conferred by the applicable local law.” WOODBURY, Circuit Judge (dissenting). The question is close, but nevertheless I feel constrained to disagree with my associates as to the interpretation of § 812 (d) of the Internal Revenue Code. I am persuaded that under Massachusetts law on the particular facts of this case enforceable constructive trusts for the benefit of each charity named in the memorandum in the amount set opposite the name of each arose at the death of the testatrix, as the court below held and as my associates are willing to concede. In this situation, I would allow a deduction under § 812(d) from the gross estate in the total amount which the charities received. The section under consideration provides that lor the purpose of the tax tile value of the net estate shall be determined by deducting" }, { "docid": "22128802", "title": "", "text": "of the Court of Appeals is reversed and the cause is remanded for further proceedings consistent with this opinion. Reversed and remanded. Mr. Justice Douglas dissents. Mr. Justice Jackson took no part in the consideration or decision of this case. “Sec. 811. Gross Estate. The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, where-ever situated, except real property situated outside of the United States— “(d) Revocable transfers. — (1) Transfers after June 22, 1936.— To the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona-fide sale for an adequate and full consideration in money or money’s worth), by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power (in whatever capacity exercisable) by the decedent alone or by the decedent in conjunction with any other person (without regard to when or from what source the decedent acquired such power), to alter, amend, revoke, or terminate, or where any such power is relinquished in contemplation of decedent’s death; “(2) Transfers on or prior to June 22, 1936. — To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke, or where the decedent relinquished any such power in contemplation of his death, except in case of a bona fide sale for an adequate and full consideration in money or money’s worth. Except in the case of transfers made after June 22, 1936, no interest of the decedent of which he has made a transfer shall be included in the gross estate under paragraph (1) unless it is includible under this paragraph.” 26 U. S." }, { "docid": "23040115", "title": "", "text": "of a bargained-for consideration is not necessary to establish reciprocity. Mr. Justice Douglas, dissenting. The object of a reciprocal trust, as I understand it, is for each settlor to rid himself of all taxable power over the corpus by exchanging taxable powers with the other settlor. Yet Joseph P. Grace and his wife did not exchange taxable powers. Each retained a sufficient power over the corpus to require the inclusion of the corpus in his or her taxable estate. Each settlor, as one of the three trustees, reserved the right to alter the trust by paying to the chief beneficiary “any amounts of the principal of the said trust, up to and including the whole thereof, which the said Trustees or a majority of them may at any time or from time to time deem advisable.” I have quoted from Janet Grace’s trust. But an almost identical provision is in the trust of Joseph P. Grace. I would conclude from the existence of this reserved power that the corpus of the Janet Grace trust was includible in her estate for purposes of the estate tax. Lober v. United States, 346 U. S. 335. That is to say the use of a reciprocal trust device to aid the avoidance of an estate tax is simply not presented by this case. I would dismiss the petition as improvidently granted. The relevant provision of the 1939 Internal Revenue Code (§811 (d)(2)) is practically identical with the corresponding provision of the 1954 Code (26 U. S. C. § 2038 (a) (2)). Each provides that a decedent’s gross estate shall include property— “To the extent of any interest therein of which the decedent has at any time made a transfer . . . where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power ... by the decedent alone or in conjunction with any person, to alter, amend, or revoke . . . .” (Emphasis supplied.) The provisions of the Joseph and Janet Grace trusts would seem to satisfy that test, for only two out" }, { "docid": "23040100", "title": "", "text": "Mk. Justice Marshall delivered the opinion of the Court. This case involves the application of § 811 (c)(1)(B) of the Internal Revenue Code of 1939 to a so-called “reciprocal trust” situation. After Joseph P. Grace’s death in 1950, the Commissioner of Internal Revenue determined that the value of a trust created by his wife was includible in his gross estate. A deficiency was assessed and paid, and, after denial of a claim for a refund, this refund suit was brought. The Court of Claims, with two judges dissenting, ruled that the value of the trust was not includible in decedent’s estate under § 811 (c) (1)(B) and entered judgment for respondent. Estate of Grace v. United States, 183 Ct. Cl. 745, 393 F. 2d 939 (1968). We granted certiorari because of an alleged conflict between the decision below and certain decisions in the courts of appeals and because of the importance of the issue presented to the administration of the federal estate tax laws. 393 U. S. 975 (1968). We reverse. I. Decedent was a very wealthy man at the time of his marriage to the late Janet Grace in 1908. Janet Grace had no wealth or property of her own, but, between 1908 and 1931, decedent transferred to her a large amount of personal and real property, including the family’s Long Island estate. Decedent retained effective control over the family’s business affairs, including the property transferred to his wife. She took no interest and no part in business affairs and relied upon her husband’s judgment. Whenever some formal action was required regarding property in her name, decedent would have the appropriate instrument prepared and she would execute it. On December 15, 1931, decedent executed a trust instrument, hereinafter called the Joseph Grace trust. Named as trustees were decedent, his nephew, and a third party. The trustees were directed to pay the income of the trust to Janet Grace during her lifetime, and to pay to her any part of the principal which a majority of the trustees might deem advisable. Janet was given the power to designate, by will" }, { "docid": "11860160", "title": "", "text": "purpose. In default of appointment, the remainder is to be distributed to the -children and issue of George surviving him. During the life of the settlor, all or part of the corpus is distributable to George upon the consent of the settlor. After the death of the settlor, the corpus can be invaded with the approval of a majority of the trustees. Further, the trustees are entitled to invade the principal whenever they deem George’s share of the income to be insufficient for proper care, maintenance, and education. Finally, the trust instrument expressly provides that it is irrevocable. The Commissioner determined that the value of the remainder interest of the three trusts should be included in the decedent’s gross estate under Section 811(d) (2) of the Internal Revenue Code, 26 U.S.C. § 811 (d) (2). The Tax Court upheld the Commissioner, and the estate has appealed. The relevant provisions of Section 811 of the Internal Revenue Code are as follows: “§ 811. Gross estate “The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated, except real property situated outside of the United States— ****** “(d) Revocable transfers * % * * * if? “(2) Transfers on or prior to June 22, 1936. To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke, or where the decedent relinquished any such power in contemplation of his death * * * We think this case is controlled by the decision of the Supreme Court in Commissioner v. Estate of Holmes, 1946, 326 U.S. 480, 66 S.Ct. 257, 90 L.Ed. 228, and our decision in Mellon v. Driscoll, 3 Cir., 1941, 117 F.2d 477, certiorari denied 313 U.S. 579, 61 S.Ct. 1100," }, { "docid": "12926110", "title": "", "text": "power over trust property. (Title 26 U.S.C. § 811(d) (2).) Because of such a retention of benefits the transfer is held to be incomplete until the decedent’s death. Accordingly, if the transfer was ineffective then the trust property was properly included in decedent’s estate at the time of his death, (this relates back to our first issue), and also the income generated therefrom in my opinion should properly have been included. But, notwithstanding my own beliefs on this matter, I, in obedience to the law of stare decisis and to my duty to follow the law of this Circuit as enunciated by our Court of Appeals, subjectively adhere to the Court’s decision in the McDermott case. I therefore hold that the Commissioner of Internal Revenue improperly included in decedent’s gross estate the sum of $186,141.16, which sum represents the property acquired by the trustees from income generated by the trusts subsequent to their creation. I now consider the third issue, whether in placing and maintaining improvements on his leasehold Fabrice can be said to have retained “possession and enjoyment” over the improvements. This question resolves itself on the intended meaning of the terms “possession and enjoyment” as those terms are used in § 811(c) (1) (B) (i) of Title 26 U.S.C. The Commissioner of Internal Revenue in determining Fabrice’s estate tax lia bility added to the gross estate the value of the farm improvements. The apparent basis for this determination was the Commissioners reliance upon the wording of § 811(c) (1) (B) (i). I find, that the literal terms of the Statute are clear and unambiguous. In the absence of finding a legislative desire or intention to limit the meaning or interpretation of these terms so as to restrict the application of the Statute, I must apply the Statute as objectively written. Fabrics did retain possession and enjoyment of the improvements for a period which did not end before his death, and accordingly I find the Commissioner properly included the improvements in his estate. Further, following the law of the sitúa of the property, Wisconsin, these improvements which included farmhouse," }, { "docid": "10419968", "title": "", "text": "from the gross estate. Reviewed by the Board. Judgment will be entered umder Rule 50. Black, dissenting: I agree with the majority opinion wherein it holds that the corpus of the two irrevocable trusts executed by decedent, Harold M. Lehman, December 6, 1930, may not be included in decedent’s gross estate under the provisions of section 302 (c) of the Revenue Act of 1926. It seems clear that both trusts were irrevocable and were not made in contemplation of death and were not intended to take effect in possession or enjoyment at or after death. I do not agree to that part of the majority opinion which holds that $150,000 should be included as a part of decedent’s gross estate under section 302 (d) of the Revenue Act of 1926 because at the time of decedent’s death he had the right to withdraw $150,000 from two trusts which were simultaneously executed by his brother Allan S. Lehman. Manifestly if the right to withdraw this $150,000 had survived decedent’s death and was available as an asset to decedent’s estate, then it is includable as a part of decedent’s estate. This inclusion would be by reason of the provisions of section 302 (a) of the Revenue Act of 1926, and not by reason of section 302 (d) of the same act. Section 302 (d) reads: (d) To tbe extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke, or where the decedent relinquished any such power in contemplation of his death, except in case of a bona fide sale for an adequate and full consideration in money or money’s worth. * * * In the two trusts which decedent executed he retained no power to make any change in the trust corpus, either alone or in conjunction with any other person. He did confer upon" }, { "docid": "9950443", "title": "", "text": "the income and add it to principal, such power falls within the description of § 811(d), and the value of the life estate must be included in decedent’s gross estate. In the present case that would be true, it seems to me, as to all the transfers in trust, whether made before or after March 3, 1931. But though the control which decedent had over the enjoyment of the life estates requires the value of those interests to be included in the gross estate, under § 811(d), it does not follow that the same control requires the corpora of the1 trusts' to be swept into the gross estate under § 811(c). The statutory language in § 811(c), describing the power over income which has the tax consequence of requiring the corpus of the trust to be included as part of the decedent’s gross estate, is markedly different from the language of § 811(d). As the opinion of the court points out, the amendment to § 811(c) which Congress rushed through on March 3, 1931, was prompted by three decisions of the Supreme Court handed down March 2, 1931. Burnet v. Northern Trust Co., 283 U.S. 782, 51 S.Ct. 342, 75 L.Ed. 1412; Morsman v. Burnet, 283 U.S. 783, 51 S.Ct. 343, 75 L.Ed. 1412; McCormick v. Burnet, 283 U.S. 784, 51 S.Ct. 343, 75 L.Ed. 1413. In the first two of these cases the grantor reserved to himself a life interest in the income (See Commissioner v. Northern Trust Co., 7 Cir., 41 F.2d 732 and Commissioner v. Morsman, 8 Cir., 44 F.2d 902); and the 1931 amendment to § 811(c) covered these cases by providing that the value of the corpus should be included in the gross estate where the grantor had reserved to him ■self the possession or enjoyment of or the right to the income from the property transferred. In the McCormick case, supra, the trustees had been directed to accumulate the net income and add the same to the principal, subject, however, to the following provision: “Said Trustee shall from time to time in each year" }, { "docid": "22555567", "title": "", "text": "was to receive the corpus. This Court considered it unnecessary “to strain the meaning of words, as is sometimes done to avoid intestacy when wills are to be construed.” It concluded that the trust having failed, the trustee must redeliver the corpus “to him from whom it came. In other words, there is a resulting trust for the donor.” Mr. Justice Frankfurter, dissenting. By fitting together my agreement with portions of the dissenting concurrence and my disagreement with a part of the comprehensive dissenting opinions of my brother Burton, I could indicate, substantially, my views of these cases. But such piecing together would make a Joseph’s coat. Therefore, even at the risk of some repetition of what has been said by others, a self-contained statement on the basic issues of these cases will make for clarity. Particularly is this desirable where disharmony of views supports a common result — a result the upsetting of which by Congress is almost invited. I. In the Spiegel case, No. 3, the decedent made a settlement by the terms of which he reserved no interest for himself, and it is not suggested that the form of the settlement disguised an attempted evasion of the estate-tax law. The corpus of the decedent’s estate is found to be subject to the estate tax on the basis of Helvering v. Hallock, 309 U. S. 106, as supplemented by Fidelity-Philadelphia Trust Co. v. Rothensies, 324 U. S. 108, Commissioner v. Estate of Field, 324 U. S. 113, and Goldstone v. United States, 325 U. S. 687. On that basis it is now decided that if there is a possibility, due to the terms of the instrument or by operation of law, however remote, that settled property may return to the set- tlor, the entire trust property must be included in the gross estate for purposes of the federal estate tax. Thus, under the Court's decision tax liability may be incurred by the discovery of a gossamer thread of possession or enjoyment, which has no value. Nevertheless the entire trust corpus is included in the gross estate and taxed" }, { "docid": "9950442", "title": "", "text": "designate who shall possess or enjoy the property or its income was apparently intended to embrace a reservation analogous to a life estate, i.e., the right to designate the person who would enjoy or possess the property for the duration of the decedent’s life. A reserved power to determine the eventual takers of property after death was already taxable under subsections (c) and (d) of the prior versions of section 811 of the Code.” MAGRUDER, Circuit Judge (dissenting in part). While the provisions of § 811(c) .and 811(d) overlap to some extent, it is important to stress that whenever §.811(c) is applicable, the value of the corpus is included in the decedent’s gross estate, whereas in the case of transfers falling within § 811(d) there must be included only the value of the particular interests the enjoyment of which had been subject to a change through the exercise of a power in the decedent to alter, etc. Where the enjoyment of the primary life estate is subject to a power in the decedent to withhold the income and add it to principal, such power falls within the description of § 811(d), and the value of the life estate must be included in decedent’s gross estate. In the present case that would be true, it seems to me, as to all the transfers in trust, whether made before or after March 3, 1931. But though the control which decedent had over the enjoyment of the life estates requires the value of those interests to be included in the gross estate, under § 811(d), it does not follow that the same control requires the corpora of the1 trusts' to be swept into the gross estate under § 811(c). The statutory language in § 811(c), describing the power over income which has the tax consequence of requiring the corpus of the trust to be included as part of the decedent’s gross estate, is markedly different from the language of § 811(d). As the opinion of the court points out, the amendment to § 811(c) which Congress rushed through on March 3, 1931, was" }, { "docid": "18399797", "title": "", "text": "had participated in the Knight case. In his dissenting opinion in the Leuthold case, he said in part: ***** “The Knight case did not hold that a wife had no community interest in the cash surrender value of life insurance policies. It held, and I believe properly, that the interest, whatever its character, did not pass by will or by the statute of inheritance, but that it passed to her husband by the contract of insurance; and there was nothing in our inheritance tax law that made such a transfer of interest taxable.” Appellee’s petition for rehearing relies strongly upon the opinion of the trial judge in the Waechter case, which in turn was predicated largely upon the holding of the Washington Court in the Knight case. The decedent in the Waechter case died when the Revenue Act of 1942 was in effect. Section 811(e) (2) relating to community interest contained the following provision: “In no case shall such interest included in the gross estate of the decedent be less than the value of such part of the community property as was subject to the decedent’s power of testamentary disposition.” The community property provisions of the 1942 Act were repealed by Section 351 of the Revenue Act of 1948, c. 168, 62 Stat. 110, effective with respect to estates of decedent dying after December 31, 1947. The decedent in this case died in 1951. Any requirement of testamentary disposition under the 1942 Act accordingly would not be applicable in this case. We find nothing in the Mendenhall decision or other California cases to justify a conclusion that the decedent did not have a property interest in her husband’s insurance policies at the time of her death. This interest was taxable as a transfer to her husband. In other words, there was a transfer to the husband within the meaning of Section 810 of the Internal Revenue Code of 1939, 26 U.S.C.A. §§ 810, even though it was not effected by will or inheritance. We see no reason accordingly for deferring action on appellee’s petition for rehearing pending appellate review of" }, { "docid": "22128801", "title": "", "text": "termination was reserved to the grantor, not in the capacity of donor, but only in that of trustee, from which the conclusion appears to be drawn that no power of termination was reserved within the meaning of § 811 (d) (2). As we have noted, the eleventh paragraph of the indenture is not wholly clear concerning the premise. But in terms the reservation is to the “Grantor, during his lifetime” and grammatical construction of the second sentence seems to indicate the qualifying clause “while acting as Trustee hereunder” was intended to apply only to the decedent’s son or sons acting in that capacity. If the question has been saved, we cannot say upon this language that the grantor did not reserve the power of termination to himself as donor rather than merely as trustee. It is unnecessary therefore to determine whether, if the reservation were different, the variation in wording between §§811 (d) (1) and (2) in this respect would be material. We have considered respondent's remaining contentions and find them without merit. The judgment of the Court of Appeals is reversed and the cause is remanded for further proceedings consistent with this opinion. Reversed and remanded. Mr. Justice Douglas dissents. Mr. Justice Jackson took no part in the consideration or decision of this case. “Sec. 811. Gross Estate. The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, where-ever situated, except real property situated outside of the United States— “(d) Revocable transfers. — (1) Transfers after June 22, 1936.— To the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona-fide sale for an adequate and full consideration in money or money’s worth), by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power (in whatever capacity exercisable) by the decedent alone or by the decedent in conjunction with any other person" }, { "docid": "9950441", "title": "", "text": "the decedent alone or by the decedent in conjunction with any other person (without regard to when or from what source the decedent acquired such power), to alter, amend, revoke, or terminate, or where any such power is relinquished in contemplation of decedent’s death; “(2) Transfers on or prior to June 22, 1986. To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke, or where the decedent relinquished any such power in contemplation of his death, except in case of a bona fide sale for an adequate and full consideration in money or money’s worth. * * * Of. Eisenstein, Powers of Appointment and Estate Taxes: II, 52 Yale L.J. 484, 540 n. 215 (1943): “The Resolution’s reference to the decedent’s reservation of a right to designate who shall possess or enjoy the property or its income was apparently intended to embrace a reservation analogous to a life estate, i.e., the right to designate the person who would enjoy or possess the property for the duration of the decedent’s life. A reserved power to determine the eventual takers of property after death was already taxable under subsections (c) and (d) of the prior versions of section 811 of the Code.” MAGRUDER, Circuit Judge (dissenting in part). While the provisions of § 811(c) .and 811(d) overlap to some extent, it is important to stress that whenever §.811(c) is applicable, the value of the corpus is included in the decedent’s gross estate, whereas in the case of transfers falling within § 811(d) there must be included only the value of the particular interests the enjoyment of which had been subject to a change through the exercise of a power in the decedent to alter, etc. Where the enjoyment of the primary life estate is subject to a power in the decedent to withhold" }, { "docid": "13504101", "title": "", "text": "standards, their power to invade capital, conditioned on contingencies which had not happened, did not in our opinion bring the trust property within the reach of section 811(d) (2). Similar reasoning leads to the same conclusion with respect to the trustees’ power over net income. At the end of each calander, year they were to accumulate the net income of that year unless prior to its amalgamation into capital they exercised their power to disburse it to, or for the benefit of, the son or,his issue. The power the trustees had with respect to disbursing income was exercisable year by year; and at the date of the decedent’s death the only income of which the enjoyment was subject to change through exercise of a power was the income of the B. Brewster Jennings trust for the year 1936. But the exercise of this power was conditioned on the trustees’ determination that disbursement of the income was necessary to enable the beneficiary to whom it might be allotted to maintain himself and his family “in comfort and in accordance with the station in life to which he belongs.” The contingency which would justify exercise of the power had not happened before the decedent’s death; consequently the 1936 net income of the B. Brewster Jennings trust was not subject at the date of the decedent’s death “to any change through the exercise of a power.” , Hence it was not includible in the gross estate of the decedent under § 811(d). This conclusion is not inconsistent with Commissioner v. Newbold’s Estate, 2 Cir., 158 F.2d 694, for there the trustees had unlimited discretion, the trust instrument expressly providing that no beneficiary should have any vested right to receive any payment from income. There remains for consideration the question whether the value of the trust property is includible in the decedent’s estate under § 811(c) upon which the appellee also relies.' This section, derived from § 302(c) of the Revenue Act of 1926 as amended by the Joint Resolution of March 3, 1931 and § 803 of the Revenue Act of 1932, provides" }, { "docid": "18399796", "title": "", "text": "passed to them, is completely unjustified; that the interest therein received by Mr. Mendenhall was by reason of the contract of insurance. The Court does not deny that Mr. Mendenhall’s position has been improved. The Court does, however, deny that the California inheritance tax statute covers such an interest as he has received, and whether it does or does not should be the prime issue in this case. * * * >> Judge Thomas, in his opinion in the Mendenhall case, found the reasoning of Chief Justice Hill in his dissenting opinion in the Leuthold case “most cogent and most persuasive”. A portion of Chief Justice Hill’s opinion, quoted in the Mendenhall decision, points up even more precisely the distinction between the federal estate tax and state inheritance tax. The Washington Court had held in the Knight case that no part of the tax surrender value of the husband’s life insurance policies was includable in the wife’s estate, and this holding was expressly overruled by the majority opinion in the Leuthold case. Chief Justice Hill had participated in the Knight case. In his dissenting opinion in the Leuthold case, he said in part: ***** “The Knight case did not hold that a wife had no community interest in the cash surrender value of life insurance policies. It held, and I believe properly, that the interest, whatever its character, did not pass by will or by the statute of inheritance, but that it passed to her husband by the contract of insurance; and there was nothing in our inheritance tax law that made such a transfer of interest taxable.” Appellee’s petition for rehearing relies strongly upon the opinion of the trial judge in the Waechter case, which in turn was predicated largely upon the holding of the Washington Court in the Knight case. The decedent in the Waechter case died when the Revenue Act of 1942 was in effect. Section 811(e) (2) relating to community interest contained the following provision: “In no case shall such interest included in the gross estate of the decedent be less than the value of such" }, { "docid": "5359634", "title": "", "text": "26 U.S.C. § 811. This section is applicable to the transfer made in 1935. Under the provisions of § 7 (b) of the Technical Changes Act of 1949, 63 Stat. 891, 26 U.S.C. § 811 note the Joint Resolution of March 3, 1931, 46 Stat. 1516, is applicable to the first transfer made on December 21, 1931. However, that resolution is identical in effect with the above quoted section in so far as here relevant. The applicable regulation, Treas.Reg. 105, § 81.18, provides in part: “The use, possession, right to the income, or other enjoyment of the property will be considered as having been retained by or reserved to the decedent to the extent that during any such period it is to be applied toward the discharge of a legal obligation of the decedent, or otherwise for his pecuniary benefit. “If such retention or reservation is of a part only of the- use, possession, income, or other enjoyment of the property, then only a corresponding proportion of the value of the property should be included in determining the value of the gross estate.” L. HAND, Circuit Judge (dissenting in part). I altogether agree as to the first trust, for it seems fair to me to hold the taxpayers to their burden of proof to show that forty per cent of its income would not have been more than a reasonable allowance to the wife for her “support and maintenance.” As to the second trust, if we were to affirm the order, I think I should also agree that the taxpayers should have shown that the income from it, when added to forty per cent of the income from the first trust, was no more than a New York court would have allowed to the decedent’s wife for “support and maintenance.” But we are reversing the order and are sending the cause back to the Tax Court to recompute the tax; and I do not see what warrant we have for denying to the taxpayers the privilege of carrying the burden of so proving, if they can, now that it has" } ]

[ { "docid": "10171393", "title": "", "text": "find that section 364(b) applies, then it should retroactively grant the advances administrative expense status. The phrase “ordinary course of business” as it is used in section 364(a) is not defined in the bankruptcy code. The same phrase is used in sections 363 and 547(c)(2)(B) without definition. Nevertheless, the court in In re Johns-Manville Corp., set forth a developing analysis as to whether an activity is within the debtor’s ordinary course of business. 60 B.R. 612 (Bankr.S.D.N.Y.1986). The court needed to define the phrase in order to answer whether the debtor corporation’s retention of certain lobbyists was in the ordinary course of business under section 363. As with section 364(a), section 363(c)(1) allows the trustee to use property of the estate in the ordinary course of business without notice or a hearing, (emphasis added). The court set forth an analysis using two dimensions: a “vertical” and “horizontal” dimension. The vertical dimension, or creditors’ expectation test, focuses on a creditor’s reasonable expectation of whether the debtor’s transaction exposes him to an economic risk different from that he has accepted in the past. Id. at 616. Some courts have interpreted this to question whether “the transaction is within the day-to-day business of the debtor ...” In re Waterfront Companies, Inc., 56 B.R. 31, 35 (Bankr.D.Minn.1985). Still another court determined that: The touchstone of “ordinariness” is ... the interested parties’ reasonable expectations of what transactions the debtor in possession is likely to enter in the course of its business. So long as the transactions conducted are consistent with these expectations, creditors have no right to notice and a hearing because their objections to such transactions are likely to relate to the bankrupt’s Chapter 11 status, not the particular transactions themselves. Where the debtor in possession is merely exercising the privileges of its Chapter 11 status, which includes the right to operate the bankrupt business, there is no general right to notice and hearing concerning particular transactions. In re James A. Phillips, Inc., 29 B.R. 391, 394 (S.D.N.Y.1983). Thus, in applying the vertical dimension, courts have looked first at the debtor’s prepetition business practices" } ]

[ { "docid": "4730820", "title": "", "text": "period between May 1, 1987 and July 23, 1987 were in the “ordinary course of the debtor’s business or financial affairs” under 11 U.S.C. § 502(f). I have found no authority directly on point; none has been cited by the parties. Thus, in deciding this issue I will look to definitions of “ordinary course of business” which have developed for that term as it is used in other Code sections. “Ordinary course of business” is a term used in 11 U.S.C. § 363(c)(1), which allows a debtor in possession to enter into transactions in the ordinary course of business without court approval; in its counterpart, 11 U.S.C. § 363(b)(1), which requires court approval of the use, sale or lease of the business or property of the debtor outside the ordinary course of business; and in 11 U.S.C. § 547(c)(2)(A), dealing with the ordinary course of business exception with regard to the avoidance of a preferential transfer. In the context of these statutory provisions, the term “ordinary course of business” has developed both a vertical and a horizontal dimension. See Johnston v. First St. Cos. (In re Waterfront Cos.), 56 B.R. 31, 34-35 (Bktcy.D.Minn.1985). Under the vertical test, sometimes referred to as the creditors’ expectation test, the court “examines the debtor’s transaction from the vantage point of a hypothetical creditor and inquires whether the transaction subjects a creditor to economic risks of a nature different from those he accepted when he decided to extend credit.” In re Johns-Manville Corp., 60 B.R. 612, 616 (Bktcy.S.D.N.Y.1986). As Judge Kressel has held, the vertical test can be framed as whether “the transaction is within the day to day business of the debtor without some kind of separate authorization.” Waterfront Cos., 56 B.R. at 35. The bankruptcy court in Johns-Manville pointed out that “the touchstone of ordinariness is the interested party’s reasonable expectations of what transactions the debtor in possession is likely to enter in the course of its business”. 60 B.R. at 616 (quoting Armstrong World Indus. v. James A. Phillips, Inc. (In re James A. Phillips, Inc.), 29 B.R. 391, 394 (S.D.N.Y.1983)). This" }, { "docid": "16870862", "title": "", "text": "in order for the statutorily mandated abstention to apply to this proceeding, an action in the Commonwealth courts must be pending.”); Ram Constr. Co. v. Port Auth. of Allegheny County, 49 B.R. 363, 367 (W.D.Pa.1985) (\"We do not believe that § 1334(c)(2) applies since PAT does not allege that an action has been commenced in state court ...”); In re Altchek, 119 B.R. 31, 34 (Bankr.S.D.N.Y.1990) (\"Because no state court action is pending with respect to the debtor’s claims, it follows that mandatory abstention is unavailable to the defendants.”); Taxel v. Commercebank (In re World Fin. Servs. Center, Inc.), 64 B.R. 980, 989 (Bankr.S.D.Cal.1986) (\"Mandatory abstention does not apply to the instant case in that there is no pending state court action.”). . Thomas, 259 B.R. at 576 (“The proceeding has already been commenced and can be timely adjudicated in a state court forum.”), citing In re McCray, 209 B.R. 410, 414 (Bankr.N.D.Miss.1997). . See, e.g., In re Chi., Milwaukee, St. Paul & Pac. R.R. Co., 6 F.3d 1184, 1189 (7th Cir.1993); In re Tucson Estates, 912 F.2d 1162, 1166-67 (9th Cir.1990); In re Republic Reader’s Service, Inc., 81 B.R. 422, 429 (Bankr.S.D.Tex.1987). . Flores v. Baldwin, 2002 WL 1118504, at *8, 2002 U.S. Dist. Lexis 9539, at *19-20 (N.D.Tex. May 28, 2002); Hester v. Coho Energy, Inc. (In re Coho Energy, Inc.), 2002 WL 523948, at *5, 2002 U.S. Dist. LEXIS 5862, at *19-20 (N.D.Tex. Apr. 5, 2002). .The \"horizontal test’’ and the \"vertical test” are the tests courts generally use in determining what is the ordinary and normal course of business. The \"horizontal test” focuses on the way businesses operate within a given industry. The \"vertical test” focuses on the expectations of creditors. See In re Roth American, Inc., 975 F.2d 949, 954 (3rd Cir.1992); Burlington N. Ry. Co. v. Dant & Russell, Inc. (In re Dant & Russell, Inc.), 853 F.2d 700, 705 (9th Cir.1988); Committee of Asbestos-Related Litigants and/or Creditors v. Johns-Manville Corp. (In re Johns-Manville Corp.), 60 B.R. 612, 616 (Bankr.S.D.N.Y.1986); In re James A. Phillips, Inc., 29 B.R. 391, 394 (S.D.N.Y.1983). . Factors that" }, { "docid": "10255938", "title": "", "text": "In re Johns-Manville Corp., 60 B.R. 612, 616 (Bankr.S.D.N.Y.1986). Application of this test involves a comparison of the debtor-in-possession’s prepetition business activities with its post petition transactions. In re Dant & Russell, Inc., 853 F.2d 700, 705 (9th Cir.1988); In re Hanson Industries, Inc., 90 B.R. 405, 414 (Bankr.D.Minn.1988). The horizontal, or industry-wide test, compares the transaction against the typical transactions of like businesses. “[T]he test is whether the post petition transaction is of a type that other similar businesses would engage in as ordinary business.” Dant & Russell, 853 F.2d at 704. These tests provide useful guidance to the courts, but they are not to be applied rigidly. If either test or dimension is not satisfied, then the disputed transaction is “most likely” not in the ordinary course of business. In re Media Central, Inc., 115 B.R. 119 (E.D.Tenn.1990). Section 363 is designed to serve the “overriding goal of maximizing the value of the estate” by striking the optimal balance between the interests of the debtor and the creditors. United States ex rel. Harrison v. Estate of Deutscher, 115 B.R. 592 (M.D.Tenn.1990). The “ordinary course of business” standard is intended to allow a debtor “the flexibility it needs to run its business and respond quickly to changes in the business climate.” Id. At the same time, it protects creditors from dissipation of the estate’s assets. Id., citing H.R.Rep. No. 595, 95th Cong. 1st Sess. 181-82 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 6141-43. Post petition payments on prepetition secured debt can constitute transactions in the ordinary course of business. In re Maun, 95 B.R. 94, 96 (Bankr.S.D.Ill.1989); In re Ford, 61 B.R. 913, 918 (Bankr.W.D.Wisc.1986). Of course, a key question in determining whether to avoid payments purportedly made in the ordinary course of business is whether the payments undermine other creditor’s interests. See, e.g., In re Flagler-at-First Associates, Ltd., 114 B.R. 297, 299 (Bankr.S.D.Fla.1990) (generally to extent post petition payments exceed the decrease in the value of creditor’s collateral they must be applied to reduce the secured portion of claim); Maun, 95 B.R. at 96 (Bankr.S.D.Ill.1989) (post" }, { "docid": "12462249", "title": "", "text": "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 horizontal dimension test was first articulated in Waterfront, 56 B.R. at 34-35, and may be described as involving an industry-wide perspective in which the debtor’s business is compared to other like businesses. In this comparison, the test is whether the postpetition transaction is of a type that other similar businesses would engage in as ordinary business. See id. at 34; see also Johns-Manville, 60 B.R. at 618. The horizontal dimension test comports with the construction of the term in other code sections, namely that a transaction occurs in the debtor-in-possession’s ordinary course of business when there is a showing that the transaction is the sort occurring in the day-to-day operation of debtor’s business. Johns-Manville, 60 B.R. at 618. “[T]his showing is required merely to assure that neither the debtor nor the creditor [did] anything abnormal to gain an advantage over other creditors[;] an extensive showing that such transactions occurred often, or even regularly, is not necessary. The transaction need not have been common; it need only be ordinary. A transaction can be ordinary and still" }, { "docid": "16870863", "title": "", "text": "Estates, 912 F.2d 1162, 1166-67 (9th Cir.1990); In re Republic Reader’s Service, Inc., 81 B.R. 422, 429 (Bankr.S.D.Tex.1987). . Flores v. Baldwin, 2002 WL 1118504, at *8, 2002 U.S. Dist. Lexis 9539, at *19-20 (N.D.Tex. May 28, 2002); Hester v. Coho Energy, Inc. (In re Coho Energy, Inc.), 2002 WL 523948, at *5, 2002 U.S. Dist. LEXIS 5862, at *19-20 (N.D.Tex. Apr. 5, 2002). .The \"horizontal test’’ and the \"vertical test” are the tests courts generally use in determining what is the ordinary and normal course of business. The \"horizontal test” focuses on the way businesses operate within a given industry. The \"vertical test” focuses on the expectations of creditors. See In re Roth American, Inc., 975 F.2d 949, 954 (3rd Cir.1992); Burlington N. Ry. Co. v. Dant & Russell, Inc. (In re Dant & Russell, Inc.), 853 F.2d 700, 705 (9th Cir.1988); Committee of Asbestos-Related Litigants and/or Creditors v. Johns-Manville Corp. (In re Johns-Manville Corp.), 60 B.R. 612, 616 (Bankr.S.D.N.Y.1986); In re James A. Phillips, Inc., 29 B.R. 391, 394 (S.D.N.Y.1983). . Factors that require looking into the merits of the case include: the extent to which state law issues predominate over bankruptcy issues; the difficulty or unsettled nature of the applicable state law; the degree of relatedness or remoteness of the proceeding to the main bankruptcy case; the substance rather than form of an asserted \"core” proceeding; and, the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court. . Any such motions should be filed under Fed.R.Civ.P. 12(b)(6), 12(c) & 56, which are incorporated into the Federal Rules of Bankruptcy procedure by Fed. R. Bankr.P. 7012 & 7056. . Hester v. Coho Energy, Inc. (In re Coho Energy, Inc.), 2002 WL 523948, at *5, 2002 U.S. Dist. LEXIS 5862, at *21-22 (N.D.Tex. Apr. 5, 2002) (\"[I]f a state law issue is not unsettled, or if there is no state authority directly on point, then the bankruptcy court is equally qualified to resolve the issue.”) citing In re Chi., Milwaukee, St. Paul" }, { "docid": "1927731", "title": "", "text": "undercutting the participation of creditors and greatly strengthening the hands of debtors in possession, with no concomitant gain furthering any Congressionally-expressed labor policy. Moreover, had Congress intended to alter the notice and a hearing requirement in section 363(b) to preclude its application to a postpetition agreement with a union, it would have done so explicitly. Cf. Ionosphere I, 922 F.2d at 991. Thus, I hold that section 1113 does not obviate the mandate that the debtor offer notice and a hearing where a postpetition modification to a collective bar gaining agreement is outside the ordinary course of a debtor’s business. C. The Nature of the Memorandum Under 11 U.S.C. § 363 The only issue remaining is whether the Memorandum constituted an ordinary course agreement and is therefore enforceable. The Bankruptcy Code does not define the term “ordinary course.” Nor is legislative history any more elucidating. Roth American, 975 F.2d at 952. Where disputes arise as to a transaction’s “ordinariness,” courts typically apply two tests: the industry-wide test, sometimes called the “horizontal test,” and the creditor’s expectation test, sometimes called the “vertical test.” Johns-Manville, 60 B.R. at 616-19; In re Waterfront Companies., 56 B.R. 31, 34-5 (Bankr.D.Minn.1985); see also In re Dant & Russell, Inc., 853 F.2d 700, 704-06 (9th Cir.1988); Habinger, Inc. v. Metro. Cosmetic & Reconstructive Surgical Clinic, 124 B.R. 784, 786 (D.Minn.1990); In re Glosser Brothers, Inc., 124 B.R. 664, 667-68 (Bankr.W.D.Pa.1991). The horizontal test focuses on “whether, from an industry-wide perspective, the transaction is the sort commonly undertaken by companies in that industry.” Roth American, 975 F.2d at 953 (citations omitted); Johns-Manville, 60 B.R. at 618 (“[T]he primary focus of the horizontal analysis is external — this business vis-a-vis similar businesses.”). Under the vertical test, the inquiry is whether the transaction in question subjects a hypothetical creditor to economic risks of a nature different from those he accepted when he decided to extend credit. Roth American, 975 F.2d at 953 (citations omitted); Johns-Manville, 60 B.R. at 616. In making this determination, courts look to the debtor’s prepetition business practices and conduct and compare them to its course" }, { "docid": "10560192", "title": "", "text": "of severance pay to Santaguida upon his termination by the debtor, continued use of a ear for one year with all costs paid by the debtor, continued payment by the debtor for medical insurance for one year, payment by the debtor for all legal fees and expenses incurred by Santaguida as a result of his termination, and no need for Santaguida to mitigate any damages. Segal acknowledged, while testifying, that during his prior seven years of service as president of the debtor, no comparable agreement had ever been entered into. The severance-pay provisions represented a radical departure from any prior severance-pay benefits granted to any of the debtor’s employees. The accepted test for determining whether a transaction is within the ordinary course of business was first and best articulated in Armstrong World Industries, Inc. v. James A. Phillips, Inc. (In re James A. Phillips, Inc.), 29 B.R. 391 (S.D.N.Y.1983). The legislative history of § 363 provides no test or guideline concerning the scope of the “ordinary course of business” standard. Nonetheless, the apparent purpose of requiring notice only where the use of property is extraordinary is to assure interested persons of an opportunity to be heard concerning transactions different from those that might be expected to take place so long as the debtor in possession is allowed to continue normal business operations under 11 U.S.C. § 1107(a) & § 1108. The touchstone of “ordinariness” is thus the interested parties’ reasonable expectations of what transactions the debtor in possession is likely to enter in the course of its business. Id. at 394. (Citations omitted). See also Burlington N. R.R. Co. v. Dant & Russell, Inc. (In re Dant & Russell, Inc.), 853 F.2d 700, 704-06 (9th Cir.1988); Committee v. Johns-Manville Corp. (In re Johns-Manville Corp.), 60 B.R. 612 (Bankr.S.D.N.Y.1986), rev’d on other grounds, 801 F.2d 60 (2d Cir.1986); Johnston v. First Street Companies (In re Waterfront Companies, Inc.), 56 B.R. 31 (Bankr.D.Minn.1985). Utilizing this test, I have no hesitancy whatsoever in concluding that the nature of Santaguida’s agreement required notice to creditors, a hearing and court approval in order to be" }, { "docid": "23532368", "title": "", "text": "relate to the bankrupt’s chapter 11 status, not the particular transactions themselves. Id. at 394. This test is applied from the perspective of a hypothetical creditor, and “inquires whether the transaction subjects a creditor to economic risks of a different nature from those he accepted when he decided to extend credit.” 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). The reasonable expectations test was modified and formally named the “vertical dimensions test” in In re Waterfront Companies, Inc. v. Johnston, 56 B.R. 31 (Bankr.D.Minn.1985). In that case, the defendants argued that a post-petition indemnity agreement executed by the debtor without notice to the creditors was within the ordinary course of business under sections 363(c)(1) and 364(a). After observing that “[sjome transactions either by their size, nature or both are not within the day-to-day operations of a business and are therefore extraordinary,” the court concluded that the vertical dimensions test for the ordinary course of business was “whether or not the transaction is within the day-to-day business of the debtor without some kind of separate authorization.” Id. at 34. In rephrasing the test in this manner, the court did not explain why the reasonable expectations test was insufficient or document how the rephrased test was superior. Several courts subsequently construed the term “ordinary course of business” as a transaction that occurred within the day-today business or operations of the debtor. See In re Johns-Manville, 60 B.R. at 618 (citations omitted). Yet, defining the “ordinary course of business” in this manner does not yield a facile, universally applicable standard against which a transaction can be objectively measured. The principal problem with the Waterfront test is that it seeks to define a broad phrase (“ordinary course of business”) by using an equally broad phrase (the “day-to-day operations” of a business) without providing any standards to determine what may be considered within a business’s day-to-day operations. Without such standards, defining a debtor’s ordinary course of business based upon its day-to-day operations does not always yield predictable results. In contrast, the reasonable expectations test" }, { "docid": "23532367", "title": "", "text": "For the reasons set forth below, this court concludes that the bankruptcy court erred as a matter of law in adopting the two-pronged test to define the “ordinary course of business.” The bankruptcy court further committed clear error by concluding that all of the overdraft credits extended post-petition were outside of the ordinary course of business. 1. The Vertical Dimensions Test As the bankruptcy court noted, the vertical dimensions test was originally set forth in In re James A. Phillips, Inc., 29 B.R. 391 (S.D.N.Y.1983), a ease which involved a dispute over the propriety of certain payments made without notice to all creditors by the trustee pursuant to section 363(b)(1). In undertaking to define the “ordinary course of business,” the court observed: The touchstone of ‘ordinariness’ is ... the interested parties’ reasonable expectations of what transactions the debtor in possession is likely to enter in the course of its business. So long as the transactions conducted are consistent with these expectations, creditors have no right to notice and hearing, because their objections are likely to relate to the bankrupt’s chapter 11 status, not the particular transactions themselves. Id. at 394. This test is applied from the perspective of a hypothetical creditor, and “inquires whether the transaction subjects a creditor to economic risks of a different nature from those he accepted when he decided to extend credit.” 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). The reasonable expectations test was modified and formally named the “vertical dimensions test” in In re Waterfront Companies, Inc. v. Johnston, 56 B.R. 31 (Bankr.D.Minn.1985). In that case, the defendants argued that a post-petition indemnity agreement executed by the debtor without notice to the creditors was within the ordinary course of business under sections 363(c)(1) and 364(a). After observing that “[sjome transactions either by their size, nature or both are not within the day-to-day operations of a business and are therefore extraordinary,” the court concluded that the vertical dimensions test for the ordinary course of business was “whether or not the transaction is within the" }, { "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": "10572612", "title": "", "text": "Russell requires both the ‘horizontal’ and “vertical’ dimension tests to be satisfied”); In re Media Cent., Inc., 115 B.R. 119, 124 (Bankr. E.D.Tenn.1990) (“If either test or dimension is not satisfied, most likely the disputed transaction is not in the ordinary course of business.”). 1. Vertical Test “The vertical dimension, or creditor’s expectation test, views the disputed transaction ‘from the vantage point of a hypothetical creditor and inquires whether the transaction subjects a creditor to economic risks of a nature different from those he accepted when he decided to extend credit.’” In re Dant & Russell, Inc., 853 F.2d at 705 (quoting Comm. of Asbestos-Related Litigants v. Johns-Manville Corp. (In re Johns-Manville Corp.), 60 B.R. 612, 616 (Bankr.S.D.N.Y.1986)). In determining whether the transaction meets the vertical dimension test, courts often look to the debtor’s prepetition business practices. Id. at 705 n. 7. This conduct is then compared to the debtor’s post-petition business activities. In re Johns- Manville Corp., 60 B.R. at 617. Stated differently, “[t]he vertical component necessarily includes an examination of the pre-petition relationship between the debt- or and his creditors to determine whether the transaction in question was ordinary in the context of that relationship.” Poff v. Poff Constr., Inc. (In re Poff Constr., Inc.), 141 B.R. 104, 106 (W.D.Va.1991). It is difficult to make a fair comparison of the Debtor’s business activities before and after its filing for bankruptcy because Straightline only entered the custom milling business a few months before filing its bankruptcy petition. Before that, it was in the business of leasing commercial real estate. There were no accounts receivable transferred from Straightline to Aalfs before September 10, 1997, the date that Straightline filed its Chapter 11 petition. Straightline’s president, Matthew Galt, testified that when Straightline was in the custom milling business prior to filing its Chapter 11 petition, it often sold accounts receivable to its vendors, but the most common aspect of these “sales” was a prepaid discount of the customer’s accounts, rather than actual sales of the accounts to third parties. Straightline’s predecessor in the custom milling business, North Coast Hardwoods, had obtained" }, { "docid": "22820597", "title": "", "text": "is merely exercising the privileges of its chapter 11 status, ... there is no general right to notice and hearing concerning particular transactions.” In re James A. Phillips, Inc., 29 B.R. 391, 394 (S.D.N.Y.1983). Only extraordinary transactions which are “different from those that might be expected to take place,” need be brought to the attention of creditors and other interested parties to allow them to voice any objections to the debtor’s proposals. Id. In determining whether notice and a hearing are required, the scope and meaning of the phrase “ordinary course of business” becomes crucial. In re Waterfront Companies, Inc., 56 B.R. 31, 35 (Bankr.D.Minn.1985). However, neither the Code nor the legislative history of § 363 provide any test or guidelines for identifying an ordinary course transaction. Likewise, other Code sections employing the phrase “ordinary course of business,” such as §§ 364(a) and 547(c)(2)(B) and (C), fail to provide direction. Nevertheless, a synthesis of existing caselaw reveals a developing yet workable analysis to be used in deciding whether an activity is within the debt- or’s “ordinary course of business.” The analysis, using “vertical” and “horizontal” components, embodies the elastic rehabilitation policies of the Code yet respects its boundaries. Because relatively new ground is being tread, the vertical and horizontal analyses are outlined below. Initially, courts determined the ordinariness of an activity by examining the debt- or’s business practices. This review has variously been referred to as the “creditor’s expectation” test, espoused in James A. Phillips, Inc., 29 B.R. at 394, and renamed the “vertical dimension” in Waterfront, 56 B.R. at 35. More recently, courts have begun to make an industry-wide comparison, the “horizontal dimension” articulated in Waterfront, 56 B.R. at 34-35. That court noted that “at least two dimensions” exist, suggesting a concept which is both expansive and flexible. Id. at 34 (emphasis added). 1. The Vertical Dimension or Creditor’s Expectation Test. The vertical dimension or creditor’s ex- . pectation test examines the debtor’s transaction from the vantage point of a hypothetical creditor and inquires whether the transaction subjects a creditor to economic risks of a nature different from those" }, { "docid": "16228483", "title": "", "text": "hearing when transactions are in the ordinary course of business “because their objections to such transactions are likely to relate to the bankrupt’s chapter 11 status, not the particular transactions themselves.” In re James A. Phillips, Inc., 29 B.R. 391, 394 (S.D.N.Y.1983). Neither the Bankruptcy Code nor its legislative history provides a framework for analyzing whether particular transactions are in the ordinary course of a debt- or’s business for the purpose of section 363. In prior cases, the courts have engaged in a two-step inquiry for determining whether a transaction is in “the ordinary course of business”: a “horizontal dimension” test and a “vertical dimension” test. See Benjamin Weintraub & Alan N. Res-nick, The Meaning of “Ordinary Course of Business” Under the Bankruptcy Code— Vertical and Horizontal Analysis, 19 UCC L.J. 364 (1987) [hereinafter Weintraub & Resnick]. The inquiry deemed horizontal is whether, from an industry-wide perspective, the transaction is of the sort commonly undertaken by companies in that industry. Id. at 367. For example, “raising a crop would not be in the ordinary course of business for a widget manufacturer because that is not a widget manufacturer’s ordinary business.” In re Waterfront Cos., 56 B.R. 31, 35 (Bankr.D.Minn.1985). The inquiry deemed vertical (more appropriately characterized as the creditor’s expectation test) analyzes the transactions “ ‘from the vantage point of a hypothetical creditor and [the inquiry is] whether the transaction subjects a creditor to economic risk of a nature different from those he accepted when he decided to extend credit.’ ” Weintraub & Resnick, 19 UCC L.J. at 365 (quoting In re Johns-Manville Corp., 60 B.R. 612, 616 (Bankr.S.D.N.Y.1986)). Under this test, “[tjhe touchstone of ‘ordinariness’ is ... the interested parties’ reasonable expectations of what transactions the debtor in possession is likely to enter in the course of its business.” • James A. Phillips, 29 B.R. at 394. The primary focus thus is on the debtor’s pre-petition business practices and conduct, although a court must also “consider the changing circumstances inherent in the hypothetical creditor’s expectations.” Weintraub & Resnick, 19 UCC L.J. at 366. In this case, satisfaction of the" }, { "docid": "1927732", "title": "", "text": "expectation test, sometimes called the “vertical test.” Johns-Manville, 60 B.R. at 616-19; In re Waterfront Companies., 56 B.R. 31, 34-5 (Bankr.D.Minn.1985); see also In re Dant & Russell, Inc., 853 F.2d 700, 704-06 (9th Cir.1988); Habinger, Inc. v. Metro. Cosmetic & Reconstructive Surgical Clinic, 124 B.R. 784, 786 (D.Minn.1990); In re Glosser Brothers, Inc., 124 B.R. 664, 667-68 (Bankr.W.D.Pa.1991). The horizontal test focuses on “whether, from an industry-wide perspective, the transaction is the sort commonly undertaken by companies in that industry.” Roth American, 975 F.2d at 953 (citations omitted); Johns-Manville, 60 B.R. at 618 (“[T]he primary focus of the horizontal analysis is external — this business vis-a-vis similar businesses.”). Under the vertical test, the inquiry is whether the transaction in question subjects a hypothetical creditor to economic risks of a nature different from those he accepted when he decided to extend credit. Roth American, 975 F.2d at 953 (citations omitted); Johns-Manville, 60 B.R. at 616. In making this determination, courts look to the debtor’s prepetition business practices and conduct and compare them to its course of conduct postpetition. Id. at 617 (citing DeLuca Distributing, 38 B.R. 588). The Code is not meant to straitjacket the debtor and prevent it from responding quickly to normal business demands; neither, however, is the Code meant to allow the debtor the same freedom it had when it got into financial trouble in the first place. For with bankruptcy come certain obligations to creditors, including affording creditors the right to be heard when the debtor proposes to do something beyond the ordinary. When viewed in the context of the horizontal and vertical tests, it is clear that the Memorandum, which, among other things, purports to settle significant prepetition claims of the Union, falls outside of the ordinary course of the debtor’s business. That is not to say that the Memorandum fails the horizontal test; on the contrary, “[m]any manufacturing companies have routinely entered into extensions of collective bargaining agreements in order to secure the continued benefits of a unionized workforce.” Roth American, 975 F.2d at 952 (citing Illinois-California Express, 72 B.R. at 991); DeLuca Distributing," }, { "docid": "10255937", "title": "", "text": "The bankruptcy court found that the payments to Habinger were not “relatively insignificant” and that court approval of those payments would not have been “unnecessarily burdensome.” Id. at 7. The bankruptcy court clearly believed that MCRS’s other creditor’s were entitled to notice of these payments and an opportunity to determine whether those payments were prejudicial to their interests. Id. On that basis, the bankruptcy court held that the payments were not in the ordinary course of business and granted the trustee’s motion to avoid them. The bankruptcy court’s definition of the ordinary course of business is not consistent with the case law that has developed under section 363(c). The courts have defined the “ordinary course of business” through two complementary tests reflecting that concept’s “vertical” and “horizontal” dimensions. The vertical test, sometimes referred to as the creditor’s expectation test, views the transaction “from the vantage point of a hypothetical creditor and inquires whether the transaction subjects a creditor to economic risks of a nature different from those he accepted when he decided to extend credit.” In re Johns-Manville Corp., 60 B.R. 612, 616 (Bankr.S.D.N.Y.1986). Application of this test involves a comparison of the debtor-in-possession’s prepetition business activities with its post petition transactions. In re Dant & Russell, Inc., 853 F.2d 700, 705 (9th Cir.1988); In re Hanson Industries, Inc., 90 B.R. 405, 414 (Bankr.D.Minn.1988). The horizontal, or industry-wide test, compares the transaction against the typical transactions of like businesses. “[T]he test is whether the post petition transaction is of a type that other similar businesses would engage in as ordinary business.” Dant & Russell, 853 F.2d at 704. These tests provide useful guidance to the courts, but they are not to be applied rigidly. If either test or dimension is not satisfied, then the disputed transaction is “most likely” not in the ordinary course of business. In re Media Central, Inc., 115 B.R. 119 (E.D.Tenn.1990). Section 363 is designed to serve the “overriding goal of maximizing the value of the estate” by striking the optimal balance between the interests of the debtor and the creditors. United States ex rel. Harrison" }, { "docid": "4730821", "title": "", "text": "a horizontal dimension. See Johnston v. First St. Cos. (In re Waterfront Cos.), 56 B.R. 31, 34-35 (Bktcy.D.Minn.1985). Under the vertical test, sometimes referred to as the creditors’ expectation test, the court “examines the debtor’s transaction from the vantage point of a hypothetical creditor and inquires whether the transaction subjects a creditor to economic risks of a nature different from those he accepted when he decided to extend credit.” In re Johns-Manville Corp., 60 B.R. 612, 616 (Bktcy.S.D.N.Y.1986). As Judge Kressel has held, the vertical test can be framed as whether “the transaction is within the day to day business of the debtor without some kind of separate authorization.” Waterfront Cos., 56 B.R. at 35. The bankruptcy court in Johns-Manville pointed out that “the touchstone of ordinariness is the interested party’s reasonable expectations of what transactions the debtor in possession is likely to enter in the course of its business”. 60 B.R. at 616 (quoting Armstrong World Indus. v. James A. Phillips, Inc. (In re James A. Phillips, Inc.), 29 B.R. 391, 394 (S.D.N.Y.1983)). This test necessarily focuses on a comparison between the debt- or’s pre and postpetition activities to discern significant alterations in its activity. The horizontal or industry wide test concentrates on an industry wide perspective and has also been utilized. See Waterfront Cos., 56 B.R. at 34-35. The horizontal dimension involves comparing the debt- or’s business to other like businesses and deciding “whether a type of transaction is in the course of that debtor’s business or in the course of some other business.” Id. at 35. The distinction between the two tests, simply stated, is that the vertical test focuses on the internal workings and operations of the debtor while the horizontal test focuses on the external relationship or comparison between this debtor’s business and similar businesses. Under either test, an examination of the transaction vis-á-vis the debtor’s business or vis-á-vis the industry, the size, nature or both, of the transaction may be dispositive on the issue of ordinariness. What may be ordinary for a large, multinational corporation engaged in a number of businesses is distinctly different" }, { "docid": "10572610", "title": "", "text": "stand when it is otherwise avoidable under § 549 because it satisfies all of the explicit requirements of an avoidable postpetition transfer. C. Ordinary Course of Business Aalfs also argues that the transfer to him of Straightline’s accounts receivable falls within the “ordinary course of business” exception to avoidable postpe-tition transfers under 11 U.S.C. § 363(c). Section 363(c)(1) of the Bankruptcy Code provides that “[i]f the business of the debt- or is authorized to be operated under section ... 1108 ... of this title and unless the court orders otherwise, the trustee may enter into transactions ... in the ordinary course of business, without notice or a hearing....” 11 U.S.C. § 363(c)(1) (West 2004). Section 1108 permits a trustee to operate a debtor’s business unless the bankruptcy court orders otherwise. Id. § 1108. Additionally, 11 U.S.C. § 1107 grants a debtor-in-possession under Chapter 11 all of the same rights and powers as a trustee. Id. § 1107(a). “A determination of whether a transaction falls outside the ordinary course of business is a question of fact that depends on the nature of industry practice.” Ganis Credit Corp. v. Anderson (In re Jan Weilert RV, Inc.), 315 F.3d 1192, 1196 (9th Cir.2003) (citing Arrow Elecs., Inc. v. Justus (In re Kay-pro), 218 F.3d 1070, 1073 (9th Cir.2000)). Two tests have emerged for determining whether a transaction is within the ordinary course of business for purposes of § 363(c) — the vertical dimension, or creditor’s expectation, test, and the horizontal dimension test. Burlington N. R.R. Co. v. Dant & Russell, Inc. (In re Dant & Russell, Inc.), 853 F.2d 700, 704 (9th Cir.1988). If both tests are satisfied, the court must conclude that the challenged transaction occurred in the debtor’s ordinary course of business. Id. at 705; see also Credit Alliance Corp. v. Idaho Asphalt Supply, Inc. (In re Blumer), 95 B.R. 143, 147 & n. 4 (9th Cir.BAP 1988) (stating that “the Ninth Circuit has determined that a transaction which meets both the ‘horizontal’ and ‘vertical’ dimension tests is in the ordinary course of business[,]” but “[i]t is unclear whether Dant &" }, { "docid": "4612974", "title": "", "text": "to mean that the record on appeal should contain all documents and proceedings considered by the court below. See In re W. T. Grant Co., 432 F.Supp 105 (S.D.N.Y.1977) aff'd without opinion, 559 F.2d 1206 (2d. Cir.1977) (construing Bankruptcy Rule 806, the predecessor to Bankruptcy Rule 8006). In the instant case, the bankruptcy court properly refused to consider and enter proposed findings based on the Robin Blumer deposition. Therefore, we refuse to consider the Robin Blumer deposition as substantive evidence on appeal. B. The bankruptcy court’s determination under sections 364(a) and 503(b)(1). The extension of credit to a trustee or debtor-in-possession in the ordinary course of business under 11 U.S.C. § 364(a) gives rise to a claim allowable as an administrative expense under 11 U.S.C. § 503(b)(1). 11 U.S.C. § 364(a); 2 Collier on Bankruptcy 11364.02 (15th Ed.1988); 3 Collier on Bankruptcy 11503.04[1][a][i]. Given the fact that the credit application identified Mr. Blumer, as opposed to Prairie Rock, as the credit applicant and contractor, and given the subsequent delivery of asphalt to Mr. Blumer on credit, the bankruptcy court’s determination that Idaho Asphalt extended credit to Mr. Blumer is not clearly erroneous. The issue in the instant appeal, however, is whether Idaho Asphalt extended the credit in the ordinary course of business. Although the Bankruptcy Code does not define the term “ordinary course of business”, the Ninth Circuit has determined that a transaction which meets both the “horizontal” and “vertical” dimension tests is in the ordinary course of business. See In re Dant & Russell, Inc., 853 F.2d 700 (9th Cir.1988). The “vertical dimension” or “creditor’s expectation” test examines the transaction from the viewpoint of a hypothetical creditor and focuses on the creditor’s “reasonable expectations of . what transactions the debtor-in-possession is likely to enter in the course of its business.” Dant & Russell, 853 F.2d at 705 (quoting In re James A. Phillips, Inc., 29 B.R. 391, 394 (S.D.N.Y.1983). In utilizing this vertical dimension test, courts look to the nature of the debtor’s pre-petition business as compared to its post-petition business, Dant & Russell, 853 F.2d at 705. The" }, { "docid": "4612975", "title": "", "text": "credit, the bankruptcy court’s determination that Idaho Asphalt extended credit to Mr. Blumer is not clearly erroneous. The issue in the instant appeal, however, is whether Idaho Asphalt extended the credit in the ordinary course of business. Although the Bankruptcy Code does not define the term “ordinary course of business”, the Ninth Circuit has determined that a transaction which meets both the “horizontal” and “vertical” dimension tests is in the ordinary course of business. See In re Dant & Russell, Inc., 853 F.2d 700 (9th Cir.1988). The “vertical dimension” or “creditor’s expectation” test examines the transaction from the viewpoint of a hypothetical creditor and focuses on the creditor’s “reasonable expectations of . what transactions the debtor-in-possession is likely to enter in the course of its business.” Dant & Russell, 853 F.2d at 705 (quoting In re James A. Phillips, Inc., 29 B.R. 391, 394 (S.D.N.Y.1983). In utilizing this vertical dimension test, courts look to the nature of the debtor’s pre-petition business as compared to its post-petition business, Dant & Russell, 853 F.2d at 705. The “horizontal dimension” test applies an industry wide perspective and involves a comparison of this debtor’s business to other like businesses and a determination of whether the “transaction is of a type that other similar businesses would engage in as ordinary business.” Id. at 704. In the instant case, the bankruptcy court found, and the evidence clearly supports, that the debtor was a contractor engaged in business as a road builder at the time he entered the transaction with Idaho Asphalt. There is no evidence properly before us disputing that this was Eldon Blumer’s pre-petition business. Accordingly, this finding is not clearly erroneous. As a contractor engaged in the road building business, under both the horizontal or vertical tests, Eldon Blumer acted in the ordinary course of business in entering the transaction with Idaho Asphalt. A hypothetical creditor would reasonably expect Eldon Blumer, as a road builder, to obtain asphalt on credit and by doing so debtor did not subject his creditors to unexpected economic risks. Similarly, it is a reasonable assumption that other road builders" }, { "docid": "10572611", "title": "", "text": "that depends on the nature of industry practice.” Ganis Credit Corp. v. Anderson (In re Jan Weilert RV, Inc.), 315 F.3d 1192, 1196 (9th Cir.2003) (citing Arrow Elecs., Inc. v. Justus (In re Kay-pro), 218 F.3d 1070, 1073 (9th Cir.2000)). Two tests have emerged for determining whether a transaction is within the ordinary course of business for purposes of § 363(c) — the vertical dimension, or creditor’s expectation, test, and the horizontal dimension test. Burlington N. R.R. Co. v. Dant & Russell, Inc. (In re Dant & Russell, Inc.), 853 F.2d 700, 704 (9th Cir.1988). If both tests are satisfied, the court must conclude that the challenged transaction occurred in the debtor’s ordinary course of business. Id. at 705; see also Credit Alliance Corp. v. Idaho Asphalt Supply, Inc. (In re Blumer), 95 B.R. 143, 147 & n. 4 (9th Cir.BAP 1988) (stating that “the Ninth Circuit has determined that a transaction which meets both the ‘horizontal’ and ‘vertical’ dimension tests is in the ordinary course of business[,]” but “[i]t is unclear whether Dant & Russell requires both the ‘horizontal’ and “vertical’ dimension tests to be satisfied”); In re Media Cent., Inc., 115 B.R. 119, 124 (Bankr. E.D.Tenn.1990) (“If either test or dimension is not satisfied, most likely the disputed transaction is not in the ordinary course of business.”). 1. Vertical Test “The vertical dimension, or creditor’s expectation test, views the disputed transaction ‘from the vantage point of a hypothetical creditor and inquires whether the transaction subjects a creditor to economic risks of a nature different from those he accepted when he decided to extend credit.’” In re Dant & Russell, Inc., 853 F.2d at 705 (quoting Comm. of Asbestos-Related Litigants v. Johns-Manville Corp. (In re Johns-Manville Corp.), 60 B.R. 612, 616 (Bankr.S.D.N.Y.1986)). In determining whether the transaction meets the vertical dimension test, courts often look to the debtor’s prepetition business practices. Id. at 705 n. 7. This conduct is then compared to the debtor’s post-petition business activities. In re Johns- Manville Corp., 60 B.R. at 617. Stated differently, “[t]he vertical component necessarily includes an examination of the pre-petition relationship" } ]

[ { "docid": "5834271", "title": "", "text": "(emphasis added). The language “in that workweek” suggests that the extra payments may only be used to offset liabilities accruing in the same workweek. The DOL has also issued an opinion letter, which states that credits “may not be carried forward or applied retroactively to satisfy an employer’s overtime pay obligation.” Letter from Herbert J. Cohen, Deputy Administrator, U.S. Dep’t of Labor, WH-526, 1985 WL 304329 (Dec. 23, 1985). 2. Circuit Court Decisions On Cumulative Offsets The circuit courts to address the issue of whether offsets may be applied cumulatively have split on it. One line of cases supports plaintiffs’ interpretation that premium credits allowed by § 207(h)(2) should be limited to the same workweek or work period in which these premiums were paid. Herman v. Fabri-Centers of Am., 308 F.3d 580, 590 (6th Cir.2002); Howard v. City of Springfield, Ill., 274 F.3d 1141, 1149 (7th Cir.2001). Another line of cases supports defendants’ interpretation that offsets may be applied cumulatively. See Singer v. City of Waco, 324 F.3d 813 (5th Cir.2003); Alexander v. United States, 32 F.3d 1571, 1577 (Fed.Cir.1994); Kohlheim v. Glynn County, Ga., 915 F.2d 1473, 1481 (11th Cir.1990). There is no authority from the Second Circuit on this issue. a. The Fifth Circuit Has Held that Offsets May be Applied Cumulatively In Singer v. City of Waco, the Fifth Circuit rejected the notion that allowing cumulative offsets permits the payment of overtime after it is due. The court reasoned that cumulative offsets merely acknowledged the fact that defendant had already paid the bulk of its overtime obligations. Singer, 324 F.3d at 828. Although plaintiffs in Singer suffered underpayments in 120 hour pay periods, they received overpayments in 96 hour pay periods. Id. at 826. The Fifth Circuit held the overpayments from the 96 hour pay periods cumulatively offset any deficiencies in the 120 hour periods. Id. at 828. The Court explained that “we need not view the overpayments made by the City during the 96-hour work periods as ‘late’ payments of overtime compensation. It seems more appropriate to view those overpayments as pre-payments: the City pre-paid the" } ]

[ { "docid": "7461892", "title": "", "text": "§ 778.202(c) (finding that credits may be given for daily compensation “against the overtime compensation which is due under the statute for hours in excess of 40 in that workweek”). Thus, while the plain language of § 207(h)(2) does not speak directly to the present issue and while the Secretary has not promulgated or published any regulation pertaining to this statutory provision, these other provisions in the FLSA and its implementing regulations lend support to the Secretary’s position that premium credits allowed by § 207(h)(2) should be limited to the same workweek or work period in which these premiums were paid. 3. Case law interpreting § 207(h)(2) Given the silence in the statute as to when overtime compensation may be credited and the lack of an implementing regulation on this precise issue, it is perhaps not surprising that divergent case law has arisen. One line of case law supports the Secretary’s interpretation that premium credits allowed by § 207(h)(2) should be limited to the same workweek or work period in which these premiums were paid. See Howard v. City of Springfield, 274 F.3d 1141, 1149 (7th Cir.2001) (holding that employer may apply certain credits against overtime owed on a pay period by pay period basis); Nolan v. City of Chicago, 125 F.Supp.2d 324, 331-33 (N.D.Ill.2000) (holding that “the offsets should be calculated on a period by period basis”). Another fine of case law supports FCA’s interpretation. See Alexander v. United States, 32 F.3d 1571, 1577 (Fed.Cir.1994) (noting that the “1931 Act pay [premium pay pursuant to subsections (5) and (6) of § 207(e) ] is creditable toward any overtime compensation due under the FLSA”); Kohlheim v. Glynn County, Ga., 915 F.2d 1473, 1481 (11th Cir.1990) (holding “that the county should be allowed to set-off all previously paid overtime premiums ... against overtime found to be due and owing during the damages phase of the trial”); Abbey v. City of Jackson, 883 F.Supp. 181 (E.D.Mich.1995) (holding that premium payments for overtime hours may be used to offset all deficiencies in overtime under the FLSA). Notwithstanding, the case law supporting the Secretary’s" }, { "docid": "1350394", "title": "", "text": "need to be included in the regular rate under the Act—in the regular rate calculation. It sought to offset compensation it was required to include in the regular rate, but did not, with compensation it voluntarily chose to include in the regular rate. Wheeler, 399 F.3d at 243. We held that this was not permitted. We could not find any “textual reason to ‘credit’ the Township for ineluding such pay in its regular rate.” Id. at 244. We explained that “while § 207(e) protects the Township from having to include non-work pay in the regular rate, it does not authorize the Township now to require such augments to be stripped out, or to take a credit for including such augments.” Id. In essence, at the point at which compensation is included in the regular rate (regardless of whether the Act required it be included), an employer may not use that compensation to offset other compensation owed under the Act. We determined that “[w]here a credit is allowed, the statute says so.” Id. at 245. The Township was not entitled to a credit under the explicit offset contemplated by section 207(h), so we concluded that the FLSA did not permit the offset. Id. (“The Township seeks a credit for allegedly including non-work pay—presumably at a non-premium rate—in the CBA’s basic annual salary. The FLSA does not provide for such an offset”). We based our conclusion that offsetting was limited to the type addressed by section 207(h) on our recognition that Section 207(h) offsetting pertained only to “extra compensation,” which is distinct from regular straight time pay. Wheeler, 399 F.3d at 245. Indeed, “such ‘extra compensation’ is a kind of overtime compensation, and thus need not be added to the regular rate. Likewise, such compensation may be credited against the Act’s required overtime pay.” Id. Courts have widely recognized that an employer may offset its overtime liability with accumulated premium pay given to employees under sections 207(e)(5)-(7). See, e.g., Singer v. City of Waco, 324 F.3d 813, 828 (5th Cir. 2003); Kohlheim v. Glynn Cty, 915 F.2d 1473, 1481 (11th Cir. 1990)." }, { "docid": "5021260", "title": "", "text": "FLSA. The preamble to the 2004 DOL regulations is, however, applicable to officers who hold the rank of detective. The preamble provides, in pertinent part, that the overtime exemptions do not apply to police officers who perform work such as “preventing or detecting crimes; conducting irivestigations or inspections for violations of law; performing surveillance; pursuing, restraining, and apprehending suspects; detaining or supervising suspected and convicted criminals; ... interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work.” 29 C.F.R. § 541.3(b)(1). Detectives are employed at the same wage rank as ordinary patrol officers and fit squarely within the language of the preamble. B. Premium Offset There are two issues to be resolved in calculating the damages amounts owed to individual plaintiffs. First, the court must decide whether the Town is entitled to offset the contractual (as opposed to FLSA) overtime payments already made to plaintiffs. The second issue is whether the Town should be credited for the payment of premiums on a cumulative basis (as defendants contend), or whether the credit may only be taken on a week-by-week basis (as plaintiffs contend). The FLSA specifically permits an employer to offset the amount owing for FLSA overtime by the “premium component” of any overtime paid to an officer pursuant to a contractual agreement. 29 U.S.C. § 207(h). Although the Town contends that it is entitled to offset all contractual overtime that it paid to plaintiffs pursuant to the CBAs, this is not the case. As the First Circuit held in Agawam, “only the premium portion of the contractual overtime rate (that is, the amount in excess of the employee’s regular rate) is deemed ‘overtime’ pay and may be offset against any statutory overtime liability in the same week.” 350 F.3d at 289 (emphasis supplied). Consistent with the instructions of the First Circuit and Judge Ponsor’s hold ing in O’Brien v. Town of Agawam, 491 F.Supp.2d 170 (D.Mass.2007), this court holds that the Town is permitted to offset only the premium portions of contractual overtime payments, although it is entitled to do so on a cumulative basis. That is," }, { "docid": "217092", "title": "", "text": "holiday or other overtime covered by subsection (6) below one and one-half times the FLSA regular rate, the City is entitled to a credit for all such payments. The case law is replete with examples similar to the case at bar, where the courts have allowed the employer to offset the FLSA overtime liability with contract overtime payments. Alexander v. United States, 32 F.3d 1571, 1576-77 (Fed.Cir.1994) (extra compensation provided at a premium rate pursuant to subsections (5) and (6) of § 207(e) was creditable towards overtime compensation due to border patrol agents under FLSA); Kohlheim v. Glynn County, Georgia, 915 F.2d 1473, 1481 (11th Cir.1990) (allowing county to use all contractual overtime, not just overtime paid at a time-and-one-half rate, towards statutory overtime found to be due); Biggs v. Joshua Hendy Corp., 183 F.2d 515 (9th Cir.1950) (employer is liable for overtime incurred when employees worked through lunch period, but liability may be offset with contractual overtime not required by statute); Dunn v. County of Muskegon, No. 1:97-cv-1003, 1998 U.S. Dist. LEXIS 19032, at *21 (WD Mich. Nov. 5, 1998) (county employer liable for failing to include longevity bonuses and shift premiums in the regular rate of pay, yet certain payments to the plaintiffs fell within subsection (5) and (6) of § 207(e), and could offset liability). In summary, the City is entitled to an offset for the overtime payments which it has made consistent with 29 U.S.C. § 207(e)(5) and (6). D. Offset For Overtime Paid Applies on a Pay Period Basis. Having held the City is entitled to an offset for its overtime payments made, the issue is whether the offset should be applied on a pay period by pay period basis or as one offset against the entire liability period. The Officers contend the offsets should be determined on a period by period basis. The City contends the offsets should apply to the aggregate liability regardless of pay periods. The Court holds the offsets should be calculated on a period by period basis. To place this issue in context, the Court posits the following hypothetical. Assume" }, { "docid": "23283997", "title": "", "text": "with the fire fighters. Under Texas law, unjust enrichment is a narrow remedy. The state courts have made clear that “[ujnjust enrichment is not a proper remedy merely because it might appear expedient or generally fair that some recompense be afforded for an unfortunate loss ... or because the benefits to the person sought to be charged amount to a windfall.” HECI Exploration Co. v. Neel, 982 S.W.2d 881, 891 (Tex.1998) (emphasis added) (internal quotation marks omitted); Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 42 (Tex.1992) (same); see Acad. Corp. v. Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 741 (Tex.App. 2000) (same). The fire fighters also contend that the district court lacked the authority under the FLSA to apply the offset. The fire fighters appear to assume that the district court acted pursuant to § 207(h) of the FLSA. That provision states that employers may offset certain overtime premiums against overtime compensation due under the statute. See 29 U.S.C. § 207(h)(2). The fire fighters, relying on several cases interpreting § 207(h), argue that the provision does not permit a district court to offset overpayments made in some work periods against shortfalls in other work periods. See Herman v. Fabri-Ctrs. of Am., Inc., 308 F.3d 580, 590 (6th Cir.2002) (“[P]remium credits allowed by § 207(h)(2) should be limited to the same workweek or work period in which these premiums were paid.”); Howard, v. City of Springfield, Ill., 274 F.3d 1141, 1149 (7th Cir.2001) (holding that “the district court erred in allowing the blanket application of all [§ 207] premium payments to all overtime liabilities”); Nolan v. City of Chicago, 125 F.Supp.2d 324, 331 (N.D.Ill.2000) (finding that “offsets [under § 207(e)(5) and (6) ] should be calculated on a period by period basis”); but see Kohlheim v. Glynn County, Ga., 915 F.2d 1473, 1481 (11th Cir.1990) (stating that an employer should be permitted to offset “all previously paid overtime premiums ... against overtime compensation found to be due”) (emphasis in original). As the fire fighters themselves point out, however, § 207(h) does not apply in this" }, { "docid": "7461893", "title": "", "text": "See Howard v. City of Springfield, 274 F.3d 1141, 1149 (7th Cir.2001) (holding that employer may apply certain credits against overtime owed on a pay period by pay period basis); Nolan v. City of Chicago, 125 F.Supp.2d 324, 331-33 (N.D.Ill.2000) (holding that “the offsets should be calculated on a period by period basis”). Another fine of case law supports FCA’s interpretation. See Alexander v. United States, 32 F.3d 1571, 1577 (Fed.Cir.1994) (noting that the “1931 Act pay [premium pay pursuant to subsections (5) and (6) of § 207(e) ] is creditable toward any overtime compensation due under the FLSA”); Kohlheim v. Glynn County, Ga., 915 F.2d 1473, 1481 (11th Cir.1990) (holding “that the county should be allowed to set-off all previously paid overtime premiums ... against overtime found to be due and owing during the damages phase of the trial”); Abbey v. City of Jackson, 883 F.Supp. 181 (E.D.Mich.1995) (holding that premium payments for overtime hours may be used to offset all deficiencies in overtime under the FLSA). Notwithstanding, the case law supporting the Secretary’s interpretation appears to be more persuasive. Specifically, as noted by the Seventh Circuit in Howard, allowing the employer to use premiums to offset the total liability is inconsistent with the language and purpose of the statute: The credit provision must be read in the context of the statute as a whole, which is designed to protect workers from the twin evils of excessive work hours and substandard wages. Barrentine [v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 739, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981) ]; Monahan v. County of Chesterfield, Virg., 95 F.3d 1263, 1267 (4th Cir.1996). Toward that end, the statute requires the payment of time and a half for overtime work. Courts have long interpreted the FLSA as requiring that those payments be timely made. Brooklyn Savs. Bank v. O’Neil, 324 U.S. 697, 703-07, 65 S.Ct. 895, 89 L.Ed. 1296 (1945); Rogers v. City of Troy, N.Y., 148 F.3d 52, 55 (2d Cir.1998); Calderon v. Witvoet, 999 F.2d 1101, 1107 (7th Cir.1993). Thus, the statute is violated even if the employer eventually" }, { "docid": "16148022", "title": "", "text": "not entitled to any damages for the time period in question. The third and final disputed issue concerns the effect of contractual overtime payments that the remaining Plaintiffs received for weeks in which they worked less than forty hours. The Town maintains preliminarily that any contractual overtime it paid in these weeks should reduce its overall FLSA liability. This contention can be disposed of summarily. As the O’Brien I court made clear, only the premium portion of the contractual overtime rate (that is, the amount in excess of the employee’s regular rate) is deemed “overtime” pay and may be offset against any statutory overtime liability in the same week. 350 F.3d at 289 (emphasis in original). The Town maintains, as a fallback position, that it is entitled to credit, at least, for the premium portions of overtime pay- merits made during weeks when Plaintiffs worked only thirty-two hours. This is a more difficult question. While the FLSA provides that contractual overtime payments may be credited toward overtime compensation due under the Act, see 29 U.S.C. § 207(h); 29 U.S.C. § 207(e)(7), neither the plain language of the statute nor Department of Labor (“DOL”) regulations address when this credit may be used. Given the absence of clear guidance from the statute’s drafters or enforcers, it is perhaps not surprising that courts confronting the issue have reached different conclusions. Compare, e.g., Herman v. Fabri-Centers of America, Inc., 308 F.3d 580, 589 (6th Cir.2002), cert. denied, Fabri-Centers of America, Inc. v. Chao, 537 U.S. 1245, 123 S.Ct. 1353, 155 L.Ed.2d 219 (2003) (concluding that “ § 207(h)(2) should be interpreted to include a workweek or work period restriction”), and Howard v. City of Springfield, 274 F.3d 1141, 1148-49 (7th Cir.2001) (refusing to permit application of cumulative credits based, in part, on concern that employers might manipulate overtime payments to take advantage of economic conditions), with Singer v. City of Waco, 324 F.3d 813, 826-28 (5th Cir.2003), reh’g denied, 67 Fed.Appx. 250 (5th Cir.2003), cert. denied, 540 U.S. 1177, 124 S.Ct. 1406, 158 L.Ed.2d 77 (2004) (offsetting “overpayments” made by municipality during 96-hour work" }, { "docid": "7461906", "title": "", "text": "interpretation. Also, I agree with the opinion of the Seventh Circuit in Howard v. City of Springfield, 274 F.3d 1141 (7th Cir.2001). I am of the opinion that the fourth, fifth and sixth paragraphs of the Substantive History section of this opinion have no application in this case and, at most, are dictum, in which I do not concur. With regard to Judge Siler’s dissenting opinion, his position has merit. However, if the law is to be corrected it should be done so by Congress or the administrative agency and not by the Court. SILER, Circuit Judge, dissenting. I respectfully dissent, not because the majority opinion is illogical in its conclusion that the premium credits allowed by 29 U.S.C. § 207(h)(2) should be limited to the same work period in which the premiums were paid, but because the statute does not so provide. I would not penalize the employer who computes its premium credits as allowed in this case. The majority opinion has analyzed the case law on this point. Thus, an employer in Illinois is restricted to premium credits within the same work period in which the premiums were paid. See Howard v. City of Springfield, 274 F.3d 1141, 1149 (7th Cir.2001); Nolan v. City of Chicago, 125 F.Supp.2d 324, 331-33 (N.D.Ill.2000). On the other hand, a federal employer, a Georgia employer, or, previously, a Michigan employer, could receive premium credits over a greater period of time than the same work period. See Alexander v. United States, 32 F.3d 1571, 1577 (Fed.Cir.1994); Kohlheim v. Glynn County, 915 F.2d 1473, 1481 (11th Cir.1990); Abbey v. City of Jackson, 883 F.Supp. 181, 186-87 (E.D.Mich.1995). It is unfair for the Secretary of Labor to force an employer to pay the additional amount of $113, 313.63 when the statute does not so provide, no regulation has ever been promulgated on the subject, and employers in other states are allowed these premium credits. As Judge Manion states in his dissent in Howard, 274 F.3d at 1149: “Neither the provisions of § 207(h)(2) of the FLSA, nor its accompanying regulations, require such a limitation.” Both" }, { "docid": "16148027", "title": "", "text": "permitting employers to credit premium payments outside the pay period “on the basis that limiting credits to a pay period would grant the plaintiffs a windfall.” Bell v. Iowa Turkey Growers Co-op., 407 F.Supp.2d 1051, 1063 (S.D.Iowa 2006) (citations omitted). In this case, Plaintiffs maintain that limiting the premium payments which the Town can use to reduce its liability will not result in a “windfall” to them. On the contrary, Plaintiffs contend that each workweek must be viewed independently to prevent the Town from being “placed in a substantially better position than if it had complied with the overtime requirements of the FLSA all along.” Howard v. City of Springfield, 274 F.3d 1141, 1148 (7th Cir.2001). Given the fact that FLSA violations typically result in an award of liquidated damages in an amount equal to unpaid overtime compensation, see 29 U.S.C. § 216(b), it is difficult to see how permitting an employer to use contractual premium overtime payments to offset FLSA overtime compensation owed would encourage noncompliance with the Act. On the other hand, “[f]orcing an employer, who has given a premium rate of pay for overtime, to forego the receipt of credit and to pay additional overtime punishes the employer without regard to whether it was attempting to avoid its obligation to adequately compensate employees for extra hours worked.” Howard, 274 F.3d at 1150 (Mannion, J., dissenting) (citation omitted). Based on the equitable principles articulated in Lupien, this court must conclude that the most prudent course is to find that the Town is entitled to offset its FLSA liability with the premium portion of contractual overtime payments it made to Plaintiffs who worked less than forty hour weeks. In conclusion, the court hereby instructs the parties to recalculate the amount of damages incurred by Plaintiffs from July 1, 1999 through July 31, 2005 in light of the following rulings: (1) Defendants are not entitled to a credit for roll call payments; (2) Defendants are entitled to the 29 U.S.C. § 207(k) exemption with respect to Plaintiffs Jennifer Blanchette, John Field, Karen Langevin, and Andrew Par-relli; and (3) Defendants are" }, { "docid": "23283998", "title": "", "text": "§ 207(h), argue that the provision does not permit a district court to offset overpayments made in some work periods against shortfalls in other work periods. See Herman v. Fabri-Ctrs. of Am., Inc., 308 F.3d 580, 590 (6th Cir.2002) (“[P]remium credits allowed by § 207(h)(2) should be limited to the same workweek or work period in which these premiums were paid.”); Howard, v. City of Springfield, Ill., 274 F.3d 1141, 1149 (7th Cir.2001) (holding that “the district court erred in allowing the blanket application of all [§ 207] premium payments to all overtime liabilities”); Nolan v. City of Chicago, 125 F.Supp.2d 324, 331 (N.D.Ill.2000) (finding that “offsets [under § 207(e)(5) and (6) ] should be calculated on a period by period basis”); but see Kohlheim v. Glynn County, Ga., 915 F.2d 1473, 1481 (11th Cir.1990) (stating that an employer should be permitted to offset “all previously paid overtime premiums ... against overtime compensation found to be due”) (emphasis in original). As the fire fighters themselves point out, however, § 207(h) does not apply in this case. See Brief of Appellants Singer et al. at 39. Section 207(h) refers to the overtime premiums listed in § 207(e) of the FLSA. That provision refers to payments that are not included in determining the regular rate of pay. See 29 U.S.C. § 207(e). These overtime premiums are extra payments made by employers. These sums are excluded from the total salary (from which the regular hourly rate is calculated) so that they do not improperly inflate the hourly rate. See Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 464, 68 S.Ct. 1186, 92 L.Ed. 1502 (1948) (“If [an] overtime premium is included in the weekly pay check that must be deducted before the division.... To permit [the] overtime premium to enter into the computation of the regular rate would be to allow overtime premium on overtime premium — a pyramiding that Congress could not have intended.”). In this case, the district court included the overpayments made to the firefighters in determining the fire fighters’ regular rate of pay. The court did not treat" }, { "docid": "16148026", "title": "", "text": "for unpaid overtime compensation under the FLSA should be done week-by-week with out offset for comp time taken outside the seven-day workweek in which [the City’s] unpaid overtime compensation liability was incurred.” Lupien, 387 F.3d at 88 (internal quotation marks omitted). The First Circuit disagreed. The Lu-pien court pointed out that O’Brien I focused exclusively on “how liability under the FLSA for unpaid wages should be determined” and did not address the “analytically distinct” issue of “remedy.” Id. at 88-89. Because the Lupien plaintiffs’ method of calculating compensatory damages would have provided them with “a windfall at the [defendants’] expense” — a result inconsistent with the FLSA’s goal of making employees whole — the Court of Appeals held that the calculation of damages caused by an unlawful comp time system must account for comp time paid by the employer, even if that comp time was not used by the employee in the same week it was earned. Id. at 90 (quoting Roman, 147 F.3d at 77). The First Circuit’s holding parallels a line of cases permitting employers to credit premium payments outside the pay period “on the basis that limiting credits to a pay period would grant the plaintiffs a windfall.” Bell v. Iowa Turkey Growers Co-op., 407 F.Supp.2d 1051, 1063 (S.D.Iowa 2006) (citations omitted). In this case, Plaintiffs maintain that limiting the premium payments which the Town can use to reduce its liability will not result in a “windfall” to them. On the contrary, Plaintiffs contend that each workweek must be viewed independently to prevent the Town from being “placed in a substantially better position than if it had complied with the overtime requirements of the FLSA all along.” Howard v. City of Springfield, 274 F.3d 1141, 1148 (7th Cir.2001). Given the fact that FLSA violations typically result in an award of liquidated damages in an amount equal to unpaid overtime compensation, see 29 U.S.C. § 216(b), it is difficult to see how permitting an employer to use contractual premium overtime payments to offset FLSA overtime compensation owed would encourage noncompliance with the Act. On the other hand, “[f]orcing" }, { "docid": "5834272", "title": "", "text": "32 F.3d 1571, 1577 (Fed.Cir.1994); Kohlheim v. Glynn County, Ga., 915 F.2d 1473, 1481 (11th Cir.1990). There is no authority from the Second Circuit on this issue. a. The Fifth Circuit Has Held that Offsets May be Applied Cumulatively In Singer v. City of Waco, the Fifth Circuit rejected the notion that allowing cumulative offsets permits the payment of overtime after it is due. The court reasoned that cumulative offsets merely acknowledged the fact that defendant had already paid the bulk of its overtime obligations. Singer, 324 F.3d at 828. Although plaintiffs in Singer suffered underpayments in 120 hour pay periods, they received overpayments in 96 hour pay periods. Id. at 826. The Fifth Circuit held the overpayments from the 96 hour pay periods cumulatively offset any deficiencies in the 120 hour periods. Id. at 828. The Court explained that “we need not view the overpayments made by the City during the 96-hour work periods as ‘late’ payments of overtime compensation. It seems more appropriate to view those overpayments as pre-payments: the City pre-paid the fire fighters to compensate them for the shortfalls they would receive in subsequent 120-hour work periods. Although § 778.106 states that overtime compensation ‘generally’ should be paid in the same work period in which the work is performed, the provision does not prohibit an employer from paying overtime compensation in advance.” Id. b. The Sixth and Seventh Circuits Have Held that Offsets May Only Be Applied to Liabilities Accruing Within the Same Work Period In contrast to the approach of the Fifth Circuit, the Sixth and Seventh Circuits have concluded that extra payments allowed by § 207(h)(2) may only be applied to liabilities accruing within the same workweek in which they are paid. Herman, 308 F.3d at 590; Howard, 274 F.3d at 1149. These circuits reasoned that the protections of the FLSA would be significantly undermined if an employer were allowed to pay its overtime obligations at a time far removed from when that amount was due. Howard, 274 F.3d at 1148. In such a case, an employer could unfairly require an employee to work" }, { "docid": "5021261", "title": "", "text": "only be taken on a week-by-week basis (as plaintiffs contend). The FLSA specifically permits an employer to offset the amount owing for FLSA overtime by the “premium component” of any overtime paid to an officer pursuant to a contractual agreement. 29 U.S.C. § 207(h). Although the Town contends that it is entitled to offset all contractual overtime that it paid to plaintiffs pursuant to the CBAs, this is not the case. As the First Circuit held in Agawam, “only the premium portion of the contractual overtime rate (that is, the amount in excess of the employee’s regular rate) is deemed ‘overtime’ pay and may be offset against any statutory overtime liability in the same week.” 350 F.3d at 289 (emphasis supplied). Consistent with the instructions of the First Circuit and Judge Ponsor’s hold ing in O’Brien v. Town of Agawam, 491 F.Supp.2d 170 (D.Mass.2007), this court holds that the Town is permitted to offset only the premium portions of contractual overtime payments, although it is entitled to do so on a cumulative basis. That is, the Town may apply a credit “regardless of when the premiums were paid and when the overtime work occurred.” Id. at 176. 4. Liquidated Damages An employer who violates the provisions of the FLSA “shall be liable to the employee or employees ... [for] unpaid compensation ... and in an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). As Judge Ponsor has noted, “liquidated damages are normally awarded in cases where an FLSA violation has been established, and it is the employer’s burden to show why that general practice should not be followed.” O’Brien v. Town of Agawam, 482 F.Supp.2d 115, 120 (D.Mass.2007). The burden on defendants to demonstrate that they acted in good faith is a surprisingly heavy one, as “case law construing 29 U.S.C. § 260 strongly suggests that liquidated damages must be awarded unless the employer can show that it solicited an opinion from the Department of Labor regarding the employment practice at issue, or relied on the advice of informed counsel.” Id. (internal citations omitted). Here, defendants concede that" }, { "docid": "12510592", "title": "", "text": "& n. 20, 65 S.Ct. 895, 89 L.Ed. 1296 (1945). See also Rogers, 148 F.3d at 57 (\"[W]hat constitutes timely payment must be determined by objective standards— and not solely by reference to the parties’ contractual arrangements.”). . See Howard v. City of Springfield, 274 F.3d 1141, 1148 (7th Cir.2001) (\"The credit provision must be read in the context of the statute as a whole, which is designed to protect workers from the twin evils of excessive work hours and substandard wages.”) (citing Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 739, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981)). . Fair Labor Standards Act of 1938 Amendments, Pub. L. No. 81-177, 63 Stat. 466, 466 (1949) (emphasis added). . See 29 U.S.C. § 207(h)(2). See also Fair Labor Standards Amendments of 1949, Pub. L. No. 81-393, § 7, 63 Stat. 910, 915 (1949) (removing \"any”). . There is a division among the circuits concerning this conclusion. Compare Herman v. Fabri-Centers of America, Inc., 308 F.3d 580, 589 (6th Cir.2002), Howard, 274 F.3d at 1148-49, and Reich v. Southern N.E. Telecomm. Corp., 892 F.Supp. 389, 405 (D.Conn.1995), aff'd (issue not raised on appeal), 121 F.3d 58 (2d Cir.1997) (applying credit only within a single workweek or work period), with Kohlheim v. Glynn County, 915 F.2d 1473, 1481 (11th Cir.1990), and O’Brien v. Town of Agawam, 491 F.Supp.2d 170, 175-76 (D.Mass.2007) (allowing credit to be applied outside the workweek or work period in which it accrued). The Second Circuit has recognized the division of authority but has declined thus far to comment on it. See Harold Levinson Assocs. v. Chao, 37 Fed.Appx. 19, 22 (2d Cir.2002). However, Kohlheim contains no analysis beyond recitation of the statutory text, and O’Brien erred by analogizing accrual of compensatory time into an employee’s reserve with the accrual of credit by the employer, despite the lack of a statutory basis for this analogy. I find those nonbinding precedents unpersuasive. . See Def. Mem. at 5. . See id. at 3. . Collazos v. United States, 368 F.3d 190, 196 (2d Cir.2004). . 29 U.S.C. § 207(h)(2)." }, { "docid": "11542204", "title": "", "text": "Judgment is whether WLF’s overtime credits should be applied cumulatively, or within a single pay period. The Plaintiffs argue that premium credits allowed pursuant to § 207(h)(2) should be applied only within a single pay period, while WLF argues that it should receive credit across pay periods to offset its total liability. Courts that have addressed this issue are divided. Courts holding that credit is only available within a single pay period focus on the fact that overtime payments are generally due at the end of a pay period, or as soon after the end of a pay period as is practicable. See Herman v. Fabri-Centers of Am., Inc., 308 F.3d 580, 590 (6th Cir.2002) (noting that the FLSA requires that overtime payments be timely made); Howard, 274 F.3d at 1148-49 (observing that applying credits cumulatively would allow employers to manipulate overtime payments to suit their economic concerns); Roland Elec. Co. v. Black, 163 F.2d 417, 420 (4th Cir.1947); Nolan, 125 F.Supp.2d at 332; see also 29 C.F.R. § 778.106 (“The general rule is that overtime compensation earned in a particular workweek must be paid on the regular pay day for the period in which such workweek ends.”); 29 C.F.R. § 778.202(c) (employer may credit excess payment “against the overtime compensation which is due under the statute for hours in excess of 40 in that workweek ”) (emphasis added). On the other hand, courts holding that credits may be applied cumulatively generally do so on the basis that limiting credits to a pay period would grant the plaintiffs a windfall. See Singer v. City of Waco, 324 F.3d 813, 826 (5th Cir.2003); Alexander v. U.S., 32 F.3d 1571, 1576-77 (Fed.Cir.1994); Kohlheim, 915 F.2d at 1481; Abbey v. City of Jackson, 883 F.Supp. 181, 184-87 (E.D.Mich.1995) (finding that regulations are ambiguous as to proper offset method, but noting that congressional intent to allow offsets is clear), overruled by Herman, 308 F.3d at 590. After careful consideration, this Court agrees with the courts that have held that credit may only be applied within a pay period. As the Seventh Circuit reasoned in" }, { "docid": "11542205", "title": "", "text": "overtime compensation earned in a particular workweek must be paid on the regular pay day for the period in which such workweek ends.”); 29 C.F.R. § 778.202(c) (employer may credit excess payment “against the overtime compensation which is due under the statute for hours in excess of 40 in that workweek ”) (emphasis added). On the other hand, courts holding that credits may be applied cumulatively generally do so on the basis that limiting credits to a pay period would grant the plaintiffs a windfall. See Singer v. City of Waco, 324 F.3d 813, 826 (5th Cir.2003); Alexander v. U.S., 32 F.3d 1571, 1576-77 (Fed.Cir.1994); Kohlheim, 915 F.2d at 1481; Abbey v. City of Jackson, 883 F.Supp. 181, 184-87 (E.D.Mich.1995) (finding that regulations are ambiguous as to proper offset method, but noting that congressional intent to allow offsets is clear), overruled by Herman, 308 F.3d at 590. After careful consideration, this Court agrees with the courts that have held that credit may only be applied within a pay period. As the Seventh Circuit reasoned in Hoiuard, the purpose of the FLSA is “to protect workers from the twin evils of excessive work hours and substandard wages.” Howard, 274 F.3d at 1148. Moreover, an employer who makes payments late has violated the FLSA. Id. (citing Barrentine, 450 U.S. at 739, 101 S.Ct. 1437). By failing to include the shift differential in the regular rate for purposes of calculating overtime, WLF deprived workers of payments that were due to them at the end of each pay period. For this reason, it is appropriate that WLF only receive credits within a single pay period. VI. CONCLUSION For the reasons discussed above, the Court concludes that: (1) WLF is not entitled to credit for sixth day premium payments under 29 U.S.C. §§ 207(e)(5) and (h); (2) The sixth day premium payments that WLF has already made should not be recalculated back into the regular rate; (3) WLF is entitled to credit for sixth day premium payments it has already made under 29 U.S.C. §§ 207(e)(6) and (h); (4) WLF is not entitled to any" }, { "docid": "11542203", "title": "", "text": "times the regular rate). D. Is WLF Entitled to Credit for “Triple Time” Payments it Accidentally Paid to Employees? WLF contends that it is entitled to receive overtime credit for “triple time” payments it accidentally made to employees at the Mount Pleasant plant in 2003. The overpayments were the result of an error in WLF’s computerized timekeeping system. Section 207(h)(1) makes clear that the only payments that are creditable towards overtime compensation are the types of payments listed in § 207(e)(5)-(7). The erroneous payments made in 2003 do not fall under any of these categories. Moreover, the employees who received the extra payments did not anticipate them, and likewise could not have anticipated that them overtime payments would be reduced at a later date due to the erroneous payments. For these reasons, the Court concludes that the accidental triple time payments may not be used to offset WLF’s overtime deficiencies. E. Should WLF’s Overtime Credits be Applied Cumulatively or Within a Single Pay Period? The final disputed issue in the Plaintiffs’ Motion for Partial Summary Judgment is whether WLF’s overtime credits should be applied cumulatively, or within a single pay period. The Plaintiffs argue that premium credits allowed pursuant to § 207(h)(2) should be applied only within a single pay period, while WLF argues that it should receive credit across pay periods to offset its total liability. Courts that have addressed this issue are divided. Courts holding that credit is only available within a single pay period focus on the fact that overtime payments are generally due at the end of a pay period, or as soon after the end of a pay period as is practicable. See Herman v. Fabri-Centers of Am., Inc., 308 F.3d 580, 590 (6th Cir.2002) (noting that the FLSA requires that overtime payments be timely made); Howard, 274 F.3d at 1148-49 (observing that applying credits cumulatively would allow employers to manipulate overtime payments to suit their economic concerns); Roland Elec. Co. v. Black, 163 F.2d 417, 420 (4th Cir.1947); Nolan, 125 F.Supp.2d at 332; see also 29 C.F.R. § 778.106 (“The general rule is that" }, { "docid": "1350395", "title": "", "text": "Township was not entitled to a credit under the explicit offset contemplated by section 207(h), so we concluded that the FLSA did not permit the offset. Id. (“The Township seeks a credit for allegedly including non-work pay—presumably at a non-premium rate—in the CBA’s basic annual salary. The FLSA does not provide for such an offset”). We based our conclusion that offsetting was limited to the type addressed by section 207(h) on our recognition that Section 207(h) offsetting pertained only to “extra compensation,” which is distinct from regular straight time pay. Wheeler, 399 F.3d at 245. Indeed, “such ‘extra compensation’ is a kind of overtime compensation, and thus need not be added to the regular rate. Likewise, such compensation may be credited against the Act’s required overtime pay.” Id. Courts have widely recognized that an employer may offset its overtime liability with accumulated premium pay given to employees under sections 207(e)(5)-(7). See, e.g., Singer v. City of Waco, 324 F.3d 813, 828 (5th Cir. 2003); Kohlheim v. Glynn Cty, 915 F.2d 1473, 1481 (11th Cir. 1990). The offset created by section 207(h) is logical because it authorizes employers to apply one type of premium pay to offset another, both of which are excluded from the regular rate. See 29 U.S.C. § 207(e). It is undisputed that the compensation paid for meal breaks was included in plaintiffs’ regular r^te of pay, and thus could not qualify as “extra compensation.” Accordingly, DuPont may not avail itself of the offset provisions explicitly allowed by § 207(h)(2). DuPont argues that the FLSA’s failure to expressly prohibit offsetting where the compensation used to offset is included in the regular ráte indicates that offsetting is allowed. We disagree with DuPont’s notion that the FLSA’s silence indicates permission. While it is true that the statute does not explicitly set forth this prohibition, the policy rationales underlying the FLSA do not permit crediting compensation used in calculating an employee’s regular rate of pay because it would allow employers to double-count the compensation. The DOL convincingly urges this viewpoint. It observes that “[t]here is no authority for the proposition that" }, { "docid": "2598885", "title": "", "text": "excludes only payments less than, not equal to, 1 lk times the regular rate. Because this payment is equal to 1 /£ times the regular rate, it falls within the statutory provision, and may be used to offset the overtime liability. See Reich v. Interstate Brands Corp., 57 F.3d 574, 578 (7th Cir.1995); Nolan v. City of Chicago, 125 F.Supp.2d 324, 331 (N.D.Ill.2000). The officers fare better with their argument that premium pay credits should only offset overtime liabilities that accrued in the same time period. As set forth above, the statute provides in relevant part that premium payments ' described in §§ 207(e)(5),(6), & (7) “shall be creditable towards overtime compensation payable pursuant to this section.” The City maintains that it can use all premium payments made during the years in issue to offset all overtime liability, regardless of when the payments were made and when the overtime was owed. The officers seek a more narrow construction of the statute that would allow such overpayments made during a given work period to be credited against amounts due during that same work period. The courts that have addressed this issue have taken divergent views, with no consensus at this point. Compare, e.g., Abbey v. City of Jackson, 883 F.Supp. 181 (E.D.Mich.1995) with Roland Electrical Co. v. Black, 163 F.2d 417 (4th Cir.1947) and Nolan, 125 F.Supp.2d at 331-33. The district court here adopted the City’s position, holding that all such premium payments could be used to offset the total liability. Because that amount exceeded the overtime owed, the court granted summary judgment for the City. The court’s decision was based in part on its conclusion that if the City was restricted to using premium pay offsets only in the pay period in which they were earned, the officers would receive an undeserved windfall. We disagree. In fact, if the City were able to use premium payments in the manner contemplated by the district court, the City would be the recipient of the windfall, and in fact would be placed in a substantially better position than if it had complied with" }, { "docid": "16148023", "title": "", "text": "§ 207(h); 29 U.S.C. § 207(e)(7), neither the plain language of the statute nor Department of Labor (“DOL”) regulations address when this credit may be used. Given the absence of clear guidance from the statute’s drafters or enforcers, it is perhaps not surprising that courts confronting the issue have reached different conclusions. Compare, e.g., Herman v. Fabri-Centers of America, Inc., 308 F.3d 580, 589 (6th Cir.2002), cert. denied, Fabri-Centers of America, Inc. v. Chao, 537 U.S. 1245, 123 S.Ct. 1353, 155 L.Ed.2d 219 (2003) (concluding that “ § 207(h)(2) should be interpreted to include a workweek or work period restriction”), and Howard v. City of Springfield, 274 F.3d 1141, 1148-49 (7th Cir.2001) (refusing to permit application of cumulative credits based, in part, on concern that employers might manipulate overtime payments to take advantage of economic conditions), with Singer v. City of Waco, 324 F.3d 813, 826-28 (5th Cir.2003), reh’g denied, 67 Fed.Appx. 250 (5th Cir.2003), cert. denied, 540 U.S. 1177, 124 S.Ct. 1406, 158 L.Ed.2d 77 (2004) (offsetting “overpayments” made by municipality during 96-hour work periods against “shortfalls” during 120-hour work periods), and Kohlheim v. Glynn County, Co., 915 F.2d 1473, 1481 (11th Cir.1990) (crediting “all previously paid overtime premiums ... against any overtime compensation found to be due and owing .... ” (emphasis in original)). Although the First Circuit initially declined to cast its lot with either line of authority, see O’Brien I, 350 F.3d at 298 (characterizing the district court as “the proper forum for litigation of damages and related remedy issues in the first instance”), its subsequent decision in Lupien v. City of Marlborough, 387 F.3d 83 (1st Cir.2004), suggests a preference for the pro-credit position articulated by the Fifth and Eleventh Circuits. In Lupien, the plaintiffs were police officers who alleged that the City of Marlborough and its police department operated a compensatory time (“comp time”) system that violated § 207(o) of the FLSA. The system in question provided that if police officers chose to accept comp time off as a substitute for cash overtime compensation, comp time would be earned at a rate of 1.5" } ]

[ { "docid": "23197398", "title": "", "text": "in this rather unorthodox fashion, defendants violated Rule 26 of the Federal Rules of Civil Procedure. Rule 26(b)(4)(B) provides that: A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only .... upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. The rule is designed to promote fairness by precluding unreasonable access to an opposing party’s diligent trial preparation. See Advisory Committee Notes, Fed.R.Civ.P. 26(b)(4)(B); Ager v. Jane C. Stormont Hosp. & Training School for Nurses, 622 F.2d 496, 502 (10th Cir.1980). Under the standards articulated in Ager, supra at 501,. Dr. Dyck was certainly an “expert who has been retained or specially employed by another party in anticipation of litigation.” He prepared a report for plaintiffs after the case was filed. This was based on information furnished to him by plaintiffs. He was paid by plaintiffs for his services. In obtaining his report and assistance, defendants failed to make the necessary showing of special need to the court. Had they made a showing, there is small possibility that they could have prevailed; they had an expert testify on the same psychological principles and procedures, and could probably have obtained others with little difficulty. In proceeding as they did, defendants circumvented the discovery process and subverted the principle of fairness that underlies Rule 26(b)(4XB). Defendants’ disregard of the Rule, coupled with the prejudice Dr. Dyck’s specially informed opinion might work on plaintiffs’ case, justified the trial court’s exclusion of the proffered evidence. The exclusion worked no hardship on defendants because they presented another expert on the same subject. So, our holding is that the trial judge acted within his discretion. In different circumstances we recognize that a trial judge might not be required to exclude the testimony of a witness consulted in violation of the rules of discovery." } ]

[ { "docid": "9823435", "title": "", "text": "the ethical implications of communications with an adversary’s expert witness. 2 Geoffrey C. Hazard & W. William Hodes, The Law of Lawyering § 3.4:402 (2d ed. Supp. 1994). The treatise advises that: “Since existing rules of civil procedure carefully provide for limited and controlled discovery of an opposing party’s expert witnesses, all other forms of contact are impliedly prohibited.” Id. Therefore, an attorney who engages in prohibited communications violates the attorney’s ethical duty tó obey the obligations of the tribunal. Id.; see Nev.Sup.Ct.R.Prof.Conduct 173(3) (1986). Moreover, since the procedure for the discovery of experts is well established, an attorney may also be in violation of the rule prohibiting conduct prejudicial to the administration of justice. Id.; see Nev.Sup.Ct.R.Prof.Conduct 203(4) (1986). There is a scarcity of case law on the issue of ex parte contact with expert witnesses, possibly because the violation seldom happens. Campbell Indus, v. M/V Gemini, 619 F.2d 24 (9th Cir.1980), discusses the issue in the context of a “switching-sides” expert. In Campbell, the defense attorney engaged in ex parte contacts with plaintiffs expert while the expert was still retained by the plaintiff. Id. at 27. This court admonished the attorney for violating Fed.R.Civ.P. 26(b)(4) and upheld the district court’s disqualification of the expert. Id. Notwithstanding the lack of case law, two ethics opinions have concluded that an attorney violates an ethical duty when the attorney has ex parte contact with the opposing party’s expert witness. The American Bar Association Formal Ethics Opinion 93-378 explained that although the ABA Model Rules do not explicitly prohibit ex parte contacts with an opposing party’s expert witness, an attorney who engages in such contacts may violate the duty to obey the obligations of the tribunal. ABA Comm, on Ethics and Professional Responsibility, Formal Op. 93-378 (1993); see Model Rules of Professional Conduct Rule 3.4(c) (1983); Nev.Sup.Ct.R.Prof.Conduct 173(3) (1986). The opinion reasoned that Fed.R.Civ.P. 26(b)(4)(A) sets forth a defined procedure for an attorney to conduct discovery with respect to an opposing party’s expert. Ex parte communications circumvent the discovery rules and thus violate an attorney’s duty to obey the obligations of the" }, { "docid": "9823432", "title": "", "text": "plaintiffs “Motion for Judgment against Newmar for Tampering with a Material Witness,” the district court interpreted the motion as an attempt by Erickson “to disqualify his own expert witness so that an adverse judgment [could] be imposed on defendant as a sanction for causing the loss of the expert.” In denying Erickson’s motion, the court relied solely upon cases which involve disqualification of a “switching sides” expert — an expert who is initially retained by one party, dismissed, and employed by the opposing party in the same or related litigation. In “switching sides” cases, courts may grant the original hiring party’s motion to disqualify the expert when it is determined that the expert is in possession of confidential information received from the first client. See, e.g., Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271, 278 (S.D.Ohio 1988) (holding plaintiffs expert witness was not disqualified even though he had previously worked for the defense on a related matter); English Feedlot, Inc. v. Norden Laboratories, Inc., 833 F.Supp. 1498, 1505 (D.Colo.1993) (holding expert witness was not disqualified from working for adverse party because he did not receive any confidences from original hiring party); Conforti & Eisele, Inc. v. Division of Bldg. & Constr., 170 N.J.Super. 64, 405 A.2d 487, 492 (Law Div.1979) (holding expert witness was disqualified from working for adverse party because he had received privileged information from original hiring party). The present case, however, does not involve an expert who changed sides and used confidential information. Rather, Dr. Grimm was still retained by Erickson at the time Combs made him an offer of employment. Therefore, the district court erred in its analysis. The present case is about an attorney who offered a monetary inducement to an expert witness prior to the expert giving his testimony. Thus, plaintiffs claim of unethical conduct by defense counsel requires us to decide: 1) whether attorney Combs’ offer of employment and subsequent ex parte communication with Dr. Grimm was unethical; and 2) if so, what sanction is appropriate? A. Unethical Conduct District courts have clear statutory authority to promulgate rules governing the admission and" }, { "docid": "22947702", "title": "", "text": "cannot say that the relatively late provision of the TÜV report, and its admission by the panel, constituted a fail-' ure of the panel to adhere to the parties’ agreement. B. The appellants also argue that the award should be vacated on the ground that the arbitration panel improperly heard testimony from Hansen, a piping expert who was retained by appellant IRI to inspect the tail gas expander casing onsite at the Tampa plant after the first wreck and who was directly involved in the redesign of the expander casing before the second wreck. The arbitration panel called Hansen to testify sua sponte, after the appellants objected to MAN GHH’s attempt to call him. The appellants assert that “[f]ederal and Florida cases uniformly prohibit ‘side-switching,’ ” that is, testimony against a party’s interest by an expert witness formerly retained by that party. Such testimony, they argue, violates “the well-established public policy protecting ... fundamental principles of fairness and professional conduct.” The appellants cite no rule of procedure or of evidence, and not a single case, establishing -the purported “rule against side-switching.” Rather, the appellants cite cases prohibiting attorneys from, or disqualifying attorneys for, contacting counterparties’ experts in violation of: 1) Fed.R.Civ.P. 26, see Durflinger v. Artiles, 727 F.2d 888 (10th Cir.1984); 2) attorney-client privilege, see Rentclub, Inc. v. Transamerica Rental Fin. Carp., 811 F.Supp. 651 (M.D.Fla.1992); or 3) the confidentiality of work product or litigation strategy, see MMR/Wallace Power & Indus., Inc. v. Thames Assocs., 764 F.Supp. 712 (D.Conn.1991); Geralnes B.V. v. City of Greenwood Village, 609 F.Supp. 191 (D.Colo. 1985). The effect of these rules, taken together, is that parties will rarely be able to avail themselves of the services of the other side’s expert witnesses—but that is merely the effect of these rules and not a rule unto itself. In the absence of any precedent, we decline to recognize any blanket rule or policy against “side-switching.” Moreover, none of the concerns in the cases cited by respondents are implicated by the arbitration panel’s admission of Hansen’s testimony. Rule 26 does not independently apply to arbitration proceedings, and attorney-client" }, { "docid": "13872286", "title": "", "text": "which is at the heart of the underlying dispute. Because of his knowledge of the site, Willett, like Morris, was listed by his em ployer as a fact witness who might also render expert testimony in the case. Similarly, Willett became an \"indispensable” member of his employer's litigation preparation efforts, and in his capacity as a de facto trial consultant and/or paralegal, was privy to confidential information regarding plaintiffs litigation strategy. Like Morris, Willett was offered money by defense counsel as an inducement to switch sides in the litigation. The principal distinction between Messrs. Willett and Morris is that Morris had entered into an actual consulting agreement with MGM to assist with its trial preparation, whereas, after MMR declared bankruptcy, Wil-lett remained unemployed until he was contacted by attorney Forstadt. However, the fact that Willett was not under contract appears to have been largely a function of the post-bankruptcy haze, Willett’s status as a trial consultant being put in limbo until he was officially offered a job by Aetna sometime in June, 1990. Even if Wil-lett's non-contractual status suggests that he was not a \"party” to the lawsuit within the meaning of Rule 4.2 of Professional Conduct, (A lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so), the absence of a contract with Aetna in no way alters the essence of Willett’s ongoing consulting relationship with plaintiffs attorneys. Finally, the fact that so few cases have cited MGM does not, as defendant maintains, suggest that the court’s reasoning in that case is suspect, but rather that there are so few attorneys who would even begin to consider such an \"egregiously underhanded, willful and knowing raid of an opposition’s expert” Geralnes B.V. v. City of Greenwood Village, 609 F.Supp. 191, 193 (D.Col.1985), as occurred in that case. . The fact that Willett was not an attorney is irrelevant to the court’s consideration of his ability to assist" }, { "docid": "12732749", "title": "", "text": "prejudiced the rights of Respondents in violation of 9 U.S.C. § 10(a)(3) and (a)(4); 3. Admission of the Hansen evidence violated public policy; 4. The Arbitration Award was irrational, arbitrary, and capricious with no basis in evidence and in contradiction of undisputed facts, failed to provide a reasoned award on principle issues as agreed by the parties, and failed to determine the issues submitted contrary to 9 U.S.C. § 10(a)(4). Additionally, Respondents argue in their Motion to Vacate the Arbitrators’ Costs Award that the Panel’s cost award is arbitrary and capricious. STANDARD OF REVIEW Respondents base their Motion to Vacate the Arbitration Award on 9 U.S.C. § 10(a)(1), (3) and (4). The Statute reads in pertinent part: (a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration— (1)Where the award was procured by corruption, fraud, or undue means ... (3) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which. the rights of any party .have been prejudiced. (4) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. Although District Courts have discretion to vacate arbitration awards, this authority is not without limits. Great deference is afforded to these types of awards. O.R. Securities, Inc. v. Professional Planning Association, 857 F.2d 742, 746 (11th Cir.1988), citing Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953). OPINION 1. Whether Hansen’s testimony unfairly prejudiced Respondents’ case — Respondents state that they originally retained Hansen as an expert. Respondents therefore, argue that they never consented to counsel for MAN GHH contacting Hansen nor their use of his expert testimony in their case. Further, Respondents argue that because of Hansen’s history of “side-switching,” the Panel, should not have called nor" }, { "docid": "9823434", "title": "", "text": "conduct of attorneys who appear before them. Frazier v. Heebe, 482 U.S. 641, 645, 107 S.Ct. 2607, 2611, 96 L.Ed.2d 557 (1987). In the District of Nevada, where this case arose, attorneys must abide by the Model Rules of Professional Conduct as adopted by the Supreme Court of Nevada. Dist.Nev.Local Rule IA 10-7 (1995). Attorney Combs’ offer of employment to Dr. Grimm violates two of these rules of professional conduct: 1) the duty to obey obligations of the tribunal, Rule 173(3); and 2) the prohibition against conduct which is prejudicial to the administration of justice, Rule 203(4). Nev.Sup.Ct.R.Prof.Conduct 173(3), 203(4) (1986). It is unethical conduct for an attorney to disobey an obligation of the court. Nev.Sup.Ct.R.Prof.Conduct 173(3). In federal court, the discovery rules impose obligations on attorneys during the course of litigation. At the time of the present litigation, Federal Rule of Civil Procedure 26(b)(4) provided that a lawyer’s permissible contact with an opposing party’s expert was limited to interrogatories and, upon leave of the court, depositions. Fed.R.Civ.P. 26(b)(4). A leading legal ethics treatise discusses the ethical implications of communications with an adversary’s expert witness. 2 Geoffrey C. Hazard & W. William Hodes, The Law of Lawyering § 3.4:402 (2d ed. Supp. 1994). The treatise advises that: “Since existing rules of civil procedure carefully provide for limited and controlled discovery of an opposing party’s expert witnesses, all other forms of contact are impliedly prohibited.” Id. Therefore, an attorney who engages in prohibited communications violates the attorney’s ethical duty tó obey the obligations of the tribunal. Id.; see Nev.Sup.Ct.R.Prof.Conduct 173(3) (1986). Moreover, since the procedure for the discovery of experts is well established, an attorney may also be in violation of the rule prohibiting conduct prejudicial to the administration of justice. Id.; see Nev.Sup.Ct.R.Prof.Conduct 203(4) (1986). There is a scarcity of case law on the issue of ex parte contact with expert witnesses, possibly because the violation seldom happens. Campbell Indus, v. M/V Gemini, 619 F.2d 24 (9th Cir.1980), discusses the issue in the context of a “switching-sides” expert. In Campbell, the defense attorney engaged in ex parte contacts with plaintiffs" }, { "docid": "22947697", "title": "", "text": "(D.Del.1990). The appellants bear the burden of proving that any of these seven defenses is applicable. See Imperial Ethiopian Gov’t, 535 F.2d at 336. Only two of the seven enumerated defenses might apply to the instant case. The first is that found in Article V(l)(d), which provides that a court may refuse to confirm an international arbitral award if “the arbitral procedure was not in accordance with the agreement of the parties.” The second is that found in Article V(2)(b), which provides that a court may refuse to enforce an arbitral award if “the recognition or enforcement of the award would be contrary to the public policy of’ the country where enforcement is sought. The appellants argue that the procedures of the Tampa panel were not in accordance with the parties’ arbitration agreement, and that the award therefore should not have been confirmed. They argue that the panel should not have considered the contents of a technical report on the wrecks provided by the German technical institute Rheinisch-Westfáliseher Technischer Überwachung Verein (the “TÜV report”), because that report was provided to the appellants at a relatively late date, very shortly before the proceedings began. In considering that report, the appellants argue, the arbitration panel violated the rules of the American Arbitration Association, which were the agreed-upon rules of procedure for the arbitration. The appellants also assert that the panel should not have heard the testimony of Donald Hansen, a piping expert who had previ ously been retained by Respondent IRI to inspect the tail gas expander onsite at the Tampa plant after the first wreck and who was directly involved in the redesign of the expander before the second wreck. Allowing this testimony, the appellants argue, violated “the well-established public policy protecting ... fundamental principles of fairness and professional conduct.” The appellants also assert a defense that is not enumerated by the New York Convention: that the arbitral award should be vacated on the ground that it is “arbitrary and capricious.” We review de novo the district court’s determinations that the procedures observed by the arbitrators were in accordance with the" }, { "docid": "22947703", "title": "", "text": "establishing -the purported “rule against side-switching.” Rather, the appellants cite cases prohibiting attorneys from, or disqualifying attorneys for, contacting counterparties’ experts in violation of: 1) Fed.R.Civ.P. 26, see Durflinger v. Artiles, 727 F.2d 888 (10th Cir.1984); 2) attorney-client privilege, see Rentclub, Inc. v. Transamerica Rental Fin. Carp., 811 F.Supp. 651 (M.D.Fla.1992); or 3) the confidentiality of work product or litigation strategy, see MMR/Wallace Power & Indus., Inc. v. Thames Assocs., 764 F.Supp. 712 (D.Conn.1991); Geralnes B.V. v. City of Greenwood Village, 609 F.Supp. 191 (D.Colo. 1985). The effect of these rules, taken together, is that parties will rarely be able to avail themselves of the services of the other side’s expert witnesses—but that is merely the effect of these rules and not a rule unto itself. In the absence of any precedent, we decline to recognize any blanket rule or policy against “side-switching.” Moreover, none of the concerns in the cases cited by respondents are implicated by the arbitration panel’s admission of Hansen’s testimony. Rule 26 does not independently apply to arbitration proceedings, and attorney-client privilege is not a concern because there is no allegation that Hansen divulged any information properly protected by the privilege. Concerns about the confidentiality of work product and litigation strategy are not implicated because Hansen was called by the panel, not by MAN GHH, and because his testimony before the panel neither relied upon any confidential work product of IRI’s attorneys nor included any information about the respondents’ litigation strategy. Finally, even if such concerns were implicated by the admission of Hansen’s testimony, we could not consider vacatur of the district court’s order confirming the award unless that admission fell within one of the New York Convention’s seven grounds for refusal to enforce an award. See M & C Corp. v. Erwin Behr GmbH & Co., KG, 87 F.3d 844, 851 (6th Cir.1996) (“[T]he Convention lists the exclusive grounds justifying refusal to recognize an [international] arbitral award.”). Even if the purported “rule against side-switching” did exist, for instance, it would not control arbitration proceedings unless the parties agreed to be controlled by it. See Szuts" }, { "docid": "7043745", "title": "", "text": "machine in a general location, faxes for high-ranking employees went to a fax machine in Johnson’s office. Johnson received confidential faxes, opened confidential mail, pulled confidential information from files in her office, typed confidential correspondence, and had confidential information on computer disks. Johnson took to her home certain computer disks which contained information on sales, customer lists, medicare, and sales representatives’ agreement letters and logs. Both parties originally listed Johnson as a potential witness in this case. Biocore, 181 F.R.D. at 665. Based upon these facts, the district court found that Johnson possessed “a veritable treasure-trove of information about plaintiffs’ operations” that while “likely to be relevant,” was protected by a confidentiality agreement. Id. at 673. Butler hired Johnson, who was then considering an employment discrimination claim with the EEOC against Biocore, to help Butler review the disorganized and unlabeled documents he received in discovery from Biocore. Butler paid Johnson a total of approximately $400 at a rate of $10 an hour. Both Butler and Johnson testified at trial and both insisted that Johnson did not reveal any confidential information while working for Butler. Their testimony, however, was not completely consistent. While Butler testified that he contacted Johnson to obtain her help in reviewing documents he found disorganized and unlabeled, Johnson testified she was contacted by Butler before he received the documents. Id. Johnson also testified, and Butler denies, that Butler asked her about her knowledge, position, and duties at Bio-core. Canon 9 provides that “[a] lawyer should avoid even the appearance of impropriety.” The district court, citing multiple authorities, held that the “appearance of impropriety” is raised when an attorney hires an ex-employee of an adversary who had been exposed to substantial amount of confidential information to assist in litigation, even when the attorney takes precautions to prevent the disclosure of confidential information. Id. (citing Rentclub, Inc. v. Transamerica Rental Fin. Corp., 811 F.Supp. 651, 655 (M.D.Fla.1992); MMR/Wallace Power & Indus., Inc. v. Thames Assocs., 764 F.Supp. 712, 726 (D.Conn.1991); In re Data Gen. Corp. Antitrust Litig., 5 Fed. R. Serv.3d 510, 510 (N.D.Cal.1986); Am. Prot. Ins. Co. v." }, { "docid": "23255824", "title": "", "text": "that the court does have such power, both for the purpose of protecting various privileges which may be breached in some fashion if an expert is permitted to change sides during litigation, see Miles v. Farrell, 549 F.Supp. 82 (N.D.Ill.1982), or as part of the court’s inherent power to preserve the public confidence in the fairness and integrity of the judicial proceedings. See Williams v. TWA, Inc., 588 F.Supp. 1037 (W.D.Mo.1984). The decisional rules set forth in Conforti simply represent the application of the court’s inherent power both to a specific type of privileged communication—in that case, the attorney-client privilege—and the use of the court’s inherent power to preserve the integrity of proceedings before it, under the label of determining whether it is “fundamentally unfair” to permit an expert witness, under certain circumstances, to switch sides. The parties here have focused largely on whether Dr. Goldsmith was retained by Rawlings as an expert witness in the Michael Paul case. Although there is much to be said for the application of “bright-line” rules in matters of this sort, the case law does not support, and I will not apply, a “bright-line” rules which would make the question of disqualification turn exclusively on the determination of whether a contractual relationship existed between Rawlings and Dr. Goldsmith. In my view, such a rule would prove both too little and too much. Under certain circumstances, it might be reasonable for an attorney or his principal to communicate privileged or confidential matters to an expert witness even in the absence of a formal contractual relationship. On the other hand, there may be situations where, despite the existence of a formal contractual relationship, so little of substance occurs during the course of the relationship that neither the integrity of the trial process, nor the interests of the party who retained the expert, would be served by blanket disqualification. Consequently, I believe the proper focus in such situations is to determine, first, whether the attorney or client acted reasonably in assuming that a confidential or fiduciary relationship of some sort existed and, if so, whether the relationship" }, { "docid": "22947729", "title": "", "text": "an \"expert witness!]' report!], witness deposition! 1 • • ■ excerpt! ] ... expert witness summarly ,][or] affidavit!].” Its production was therefore not required by the prehearing order, and that order was not violated by its late production. . As an initial matter, we doubt whether Hansen was in fact an \"expert witness” for IRI, and not merely a professional consultant who in this case happened to be a fact witness. Hansen never had an exclusivity or confidentiality agreement with IRI and was never asked to serve as an expert witness in the litigation in district court. These facts alone suffice to distinguish the instant case from the Middle District of Florida’s holding in Rentclub, Inc. v. Transamerica Rental Fin. Corp., 811 F.Supp. 651 (M.D.Fla. 1992), upon which the appellants rely. Most important, however, Hansen directly observed the redesign and reconstruction of the expander after the first wreck, and consulted with the parties during that process; in this regard his status in the arbitration proceeding was much the same as that of a consulting physician in a medical malpractice case. Nevertheless, we assume arguendo that Hansen's consulting work for IRI qualifies him as IRI’s \"expert witness” for purposes of this discussion. .Rule 26(b)(4)(B) provides: A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for Lhe party seeking discovery to obtain facts or opinions on the same subject by other means. . A domestic arbitral award may be vacated as \"arbitrary and capricious” if it \"exhibits a wholesale departure from the law [or] if the reasoning is so palpably faulty that no judge, or group of judges, could ever conceivably have made such a ruling.” Brown v. Rauscher Pierce Refsnes, Inc., 994 F.2d 775, 781 (11th Cir.1993). . We note that international arbitrators often" }, { "docid": "22947728", "title": "", "text": "prejudice caused by the admission of Hansen’s testimony and of the TÜV report was therefore cured sufficiently to ensure that the proceedings were not rendered fundamentally unfair by the admission of these materials. . In Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir.1982), this court adopted as binding precedent all decisions of Unit B of the former Fifth Circuit handed down after September 30, 1981. . Respondents also argue that the admission of the TÜV report at a relatively late date violated the panel’s own prehearing order. That order provided that [e]ach side shall submit its expert witnesses’ reports, witness depositions, or excerpts, to be relied upon, and expert witness summaries/affidavits, which shall include the experts' backgrounds and history, in quadruplicate, to the Association, for transmittal to the Arbitrators, by June 12, 1992. The admission of such documents after June 12, 1992, in contravention of the panel’s order, might or might not violate the agreement of the parties. We need not reach that question, however, because the TÜV report was an exhibit, not an \"expert witness!]' report!], witness deposition! 1 • • ■ excerpt! ] ... expert witness summarly ,][or] affidavit!].” Its production was therefore not required by the prehearing order, and that order was not violated by its late production. . As an initial matter, we doubt whether Hansen was in fact an \"expert witness” for IRI, and not merely a professional consultant who in this case happened to be a fact witness. Hansen never had an exclusivity or confidentiality agreement with IRI and was never asked to serve as an expert witness in the litigation in district court. These facts alone suffice to distinguish the instant case from the Middle District of Florida’s holding in Rentclub, Inc. v. Transamerica Rental Fin. Corp., 811 F.Supp. 651 (M.D.Fla. 1992), upon which the appellants rely. Most important, however, Hansen directly observed the redesign and reconstruction of the expander after the first wreck, and consulted with the parties during that process; in this regard his status in the arbitration proceeding was much the same as that of a consulting physician" }, { "docid": "22947701", "title": "", "text": "enjoys wide latitude in conducting an arbitration hearing. Arbitration proceedings are not constrained by formal rules of procedure or evidence.” Robbins v. Day, 954 F.2d 679, 685 (11th Cir.1992), overruled on other grounds, Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985. Arbitration rules, such as those of the AAA, are intentionally written loosely, in order to allow arbitrators to resolve disputes without the many procedural requirements of litigation. The AAA’s Rule 3 is a prime example. It does not require parties to provide all documents by any certain deadline; rather, it notes the importance of predictability in the proceedings and of the efficient exchange of relevant information, and provides only that “the AAA will make arrangements for the exchange of documentary evidence.” There is thus no notice requirement in Rule 3 that MAN GHH could have violated; instead, arbitrators are left wide discretion to require the exchange of evidence, and to admit or exclude evidence, how and when they see fit. This is the rule to which the parties agreed, and we therefore cannot say that the relatively late provision of the TÜV report, and its admission by the panel, constituted a fail-' ure of the panel to adhere to the parties’ agreement. B. The appellants also argue that the award should be vacated on the ground that the arbitration panel improperly heard testimony from Hansen, a piping expert who was retained by appellant IRI to inspect the tail gas expander casing onsite at the Tampa plant after the first wreck and who was directly involved in the redesign of the expander casing before the second wreck. The arbitration panel called Hansen to testify sua sponte, after the appellants objected to MAN GHH’s attempt to call him. The appellants assert that “[f]ederal and Florida cases uniformly prohibit ‘side-switching,’ ” that is, testimony against a party’s interest by an expert witness formerly retained by that party. Such testimony, they argue, violates “the well-established public policy protecting ... fundamental principles of fairness and professional conduct.” The appellants cite no rule of procedure or of evidence, and not a single case," }, { "docid": "12732750", "title": "", "text": "refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which. the rights of any party .have been prejudiced. (4) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. Although District Courts have discretion to vacate arbitration awards, this authority is not without limits. Great deference is afforded to these types of awards. O.R. Securities, Inc. v. Professional Planning Association, 857 F.2d 742, 746 (11th Cir.1988), citing Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953). OPINION 1. Whether Hansen’s testimony unfairly prejudiced Respondents’ case — Respondents state that they originally retained Hansen as an expert. Respondents therefore, argue that they never consented to counsel for MAN GHH contacting Hansen nor their use of his expert testimony in their case. Further, Respondents argue that because of Hansen’s history of “side-switching,” the Panel, should not have called nor allowed Hansen to testify, as this unfairly prejudiced their case. The issue over whether Hansen should have been allowed to testify was vigorously debated by the parties. The. Arbitration Panel, over Respondents contentions, decided to call Hansen as their own witness. The Panel found that Hansen’s testimony was relevant to the issues in the case and indeed, the Panel relied on Hansen’s testimony, along with the other expert testimony, in making its ruling. Clearly, Hansen’s testimony was damaging to Respondent’s case. Respondents are in effect, asking this Court to review the Arbitrator’s Award de novo. The level of scrutiny given to an Arbitrator’s award is not that intrusive and moreover, because such awards are given greater deference, this Court shall not make such a review. It is well settled that Federal courts give great deference to an arbitrator’s decision to control the order, procedure and presentation of evidence. While it is true that Hansen testified that he believed the piping caused the machine failure and that this may have been a change from his original" }, { "docid": "22947704", "title": "", "text": "privilege is not a concern because there is no allegation that Hansen divulged any information properly protected by the privilege. Concerns about the confidentiality of work product and litigation strategy are not implicated because Hansen was called by the panel, not by MAN GHH, and because his testimony before the panel neither relied upon any confidential work product of IRI’s attorneys nor included any information about the respondents’ litigation strategy. Finally, even if such concerns were implicated by the admission of Hansen’s testimony, we could not consider vacatur of the district court’s order confirming the award unless that admission fell within one of the New York Convention’s seven grounds for refusal to enforce an award. See M & C Corp. v. Erwin Behr GmbH & Co., KG, 87 F.3d 844, 851 (6th Cir.1996) (“[T]he Convention lists the exclusive grounds justifying refusal to recognize an [international] arbitral award.”). Even if the purported “rule against side-switching” did exist, for instance, it would not control arbitration proceedings unless the parties agreed to be controlled by it. See Szuts v. Dean Witter Reynolds, Inc., 931 F.2d 830, 831 (11th Cir. 1991) (noting that power and authority of arbitrator at arbitration proceeding is dependent upon the provisions of the arbitration agreement under which he was appointed). Nor have the appellants established that the admission of Hansen’s testimony was a violation of public policy of the sort required to sustain a defense under article V(b)(2) of the New York Convention. We have held that domestic arbitral awards are unenforceable on grounds that they are violative of public policy only when the award violates some “explicit public policy” that is “well-defined and dominant ... [and is] ascertained ‘by reference to the laws and legal precedents and not from general consideration of supposed public interests.’” Drummond Coal Co. v. United Mine Workers, District 20, 748 F.2d 1495, 1499 (11th Cir.1984) (quoting W.R. Grace & Co. v. Local Union 759, Int’l Union of the United Rubber, Cork, Linoleum & Plastic Workers, 461 U.S. 757, 766, 103 S.Ct. 2177, 2183, 76 L.Ed.2d 298 (1983)). We believe that rule applies with" }, { "docid": "9823431", "title": "", "text": "resigned from his job with Combs. Even though Dr. Grimm was no longer working as an expert for Combs, Erickson fired Dr. Grimm because Erickson did not know if he could trust him. In addition, Erickson’s chassis expert, Bennett, refused to be an expert for Erickson because he did not want to be involved in a case where “the attorneys [were] bothering the witnesses.” On October 27, 1993, the district court denied Erickson’s motion for judgment against Newmar. Five days later, Erickson went to trial without his expert witnesses. The district court conducted a bench trial and thereafter entered judgment in favor of Newmar. DISCUSSION I. Standard of Review The district court has the duty and responsibility of supervising the conduct of attorneys who appear before it. Trust Corp. v. Piper Aircraft Corp., 701 F.2d 85, 87 (9th Cir.1983). Since the district court is vested with the power and responsibility of supervising the professional conduct of attorneys appearing before it, the appropriate standard of review is “abuse of discretion.” Id. II. Witness Tampering In determining plaintiffs “Motion for Judgment against Newmar for Tampering with a Material Witness,” the district court interpreted the motion as an attempt by Erickson “to disqualify his own expert witness so that an adverse judgment [could] be imposed on defendant as a sanction for causing the loss of the expert.” In denying Erickson’s motion, the court relied solely upon cases which involve disqualification of a “switching sides” expert — an expert who is initially retained by one party, dismissed, and employed by the opposing party in the same or related litigation. In “switching sides” cases, courts may grant the original hiring party’s motion to disqualify the expert when it is determined that the expert is in possession of confidential information received from the first client. See, e.g., Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271, 278 (S.D.Ohio 1988) (holding plaintiffs expert witness was not disqualified even though he had previously worked for the defense on a related matter); English Feedlot, Inc. v. Norden Laboratories, Inc., 833 F.Supp. 1498, 1505 (D.Colo.1993) (holding expert witness was not" }, { "docid": "22947698", "title": "", "text": "that report was provided to the appellants at a relatively late date, very shortly before the proceedings began. In considering that report, the appellants argue, the arbitration panel violated the rules of the American Arbitration Association, which were the agreed-upon rules of procedure for the arbitration. The appellants also assert that the panel should not have heard the testimony of Donald Hansen, a piping expert who had previ ously been retained by Respondent IRI to inspect the tail gas expander onsite at the Tampa plant after the first wreck and who was directly involved in the redesign of the expander before the second wreck. Allowing this testimony, the appellants argue, violated “the well-established public policy protecting ... fundamental principles of fairness and professional conduct.” The appellants also assert a defense that is not enumerated by the New York Convention: that the arbitral award should be vacated on the ground that it is “arbitrary and capricious.” We review de novo the district court’s determinations that the procedures observed by the arbitrators were in accordance with the agreement of the parties, that the admission of Hansen’s testimony was not violative of public policy, and that the award was not “arbitrary and capricious.” See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947-49, 115 S.Ct. 1920, 1926, 131 L.Ed.2d 985 (1995) (requiring de novo review of questions of law involved in a district court’s refusal to vacate an arbitral award). We hold that the admission of the TÜV report was in accordance with the AAA rules and therefore with the agreement of the parties. We also hold that the admission of Hansen’s testimony was not a violation of public policy of the sort required to sustain a defense under the New York Convention. We further hold that no defense against enforcement of an international arbitral award under Chapter 2 of the FAA is available on the ground that the award is “arbitrary and capricious,” or on any other grounds not specified by the Convention. A. Rule 3 of the AAA’s Supplementary Procedures for International Commercial Arbitration provides that [a]t the request" }, { "docid": "7043746", "title": "", "text": "not reveal any confidential information while working for Butler. Their testimony, however, was not completely consistent. While Butler testified that he contacted Johnson to obtain her help in reviewing documents he found disorganized and unlabeled, Johnson testified she was contacted by Butler before he received the documents. Id. Johnson also testified, and Butler denies, that Butler asked her about her knowledge, position, and duties at Bio-core. Canon 9 provides that “[a] lawyer should avoid even the appearance of impropriety.” The district court, citing multiple authorities, held that the “appearance of impropriety” is raised when an attorney hires an ex-employee of an adversary who had been exposed to substantial amount of confidential information to assist in litigation, even when the attorney takes precautions to prevent the disclosure of confidential information. Id. (citing Rentclub, Inc. v. Transamerica Rental Fin. Corp., 811 F.Supp. 651, 655 (M.D.Fla.1992); MMR/Wallace Power & Indus., Inc. v. Thames Assocs., 764 F.Supp. 712, 726 (D.Conn.1991); In re Data Gen. Corp. Antitrust Litig., 5 Fed. R. Serv.3d 510, 510 (N.D.Cal.1986); Am. Prot. Ins. Co. v. MGM Grand Hotel, Nos. CIV-LV-82-26 HEC & CIV-LV-82-96 HEC, 1983 WL 25286 (D.Nev., Dec.8, 1983)). Therefore, the district court concluded, in hiring Johnson, Butler “raisefd] an appearance of impropriety” and, in so doing, violated Canon 9. On appeal, Butler argues that his ease is distinguishable from the cases cited by the district court on three grounds. First, Butler notes that, unlike in Rentclub, MMR/Wallace, and Am. Prot. Ins., the former employee he hired, Johnson, did not have access to privileged information regarding litigation. Second, Butler claims that the sole reason for Johnson’s hiring was Biocore’s conduct in supplying “over 80 boxes of mislabel documents.” Finally, Butler asserts that Biocore consented to Johnson’s employment in not physically preventing her from reviewing the discovery documents which were located at Biocore’s counsel’s office. We review each of these arguments in turn and, for the reasons detailed below, find them all unconvincing. We find Butler’s first argument, that Johnson had no access to privileged information regarding litigation, unconvincing because access to privileged information is not an element of a" }, { "docid": "10234937", "title": "", "text": "to former as well as current employees, focuses not upon the individual’s status as employee, but looks instead to the extent of the confidences shared. Its rationale is obvious. Where the risk of breaching protected areas is great, prophylactic provision must be made for monitoring. This can be accomplished if either organizational counsel is present to object or if the court has set appropriate ground rules in advance. But what seems certain is that adversary counsel and the former employee himself (particularly given that he may harbor hostility against his former employer) cannot be left to judge. Niesig’s determination to exclude former employees from the no-contact rule is thus rejected, but its concern for relatively free and easy access to former employees is not. As Comment [d] to Proposed Rule 162 points out: “Only some persons exposed to a principal’s confidential information will have been exposed to the extent stated.” Former employees whose exposure has been less than extensive would still be available for ex parte interviews. The rule of the draft Restatement is not merely the product, of the draftsman’s imagination nor does it require an interpretation of Rule 4.2 that strains to find that a former employee is a represented “party.” Ample case authority supports limitations on contact with former employees who have had extensive exposure to privileged information. See, e.g., Rentclub, Inc. v. Transamerica Rental Fin. Corp., 811 F.Supp. 651 (M.D.Fla.1992), [aff'd, 43 F.3d 1439 (11th Cir.1995) (per curiam) ]; MMR/Wallace Power & Indus., Inc. v. Thames Assocs., 764 F.Supp. 712 (D.Conn.1991); Chancellor v. Boeing Co., 678 F.Supp. 250 (D.Kan.1988); Williams v. Trans World Airlines, Inc., 588 F.Supp. 1037 (W.D.Mo.1984); Hazard & Hodes, supra, at § 4.2:107 (Rule 4.2 violated where there is high risk former employee will disclose confidential information); cf. Lang v. Superior Court, 170 Ariz. 602, 826 P.2d 1228 (Ariz.App.1992). * * * * * * What the proposed Restatement does, however, is to extract the organizing principle from these various authorities. Only insofar as a former employee has been extensively exposed to confidential information and only insofar as an adversary attorney knows (or," }, { "docid": "10234938", "title": "", "text": "merely the product, of the draftsman’s imagination nor does it require an interpretation of Rule 4.2 that strains to find that a former employee is a represented “party.” Ample case authority supports limitations on contact with former employees who have had extensive exposure to privileged information. See, e.g., Rentclub, Inc. v. Transamerica Rental Fin. Corp., 811 F.Supp. 651 (M.D.Fla.1992), [aff'd, 43 F.3d 1439 (11th Cir.1995) (per curiam) ]; MMR/Wallace Power & Indus., Inc. v. Thames Assocs., 764 F.Supp. 712 (D.Conn.1991); Chancellor v. Boeing Co., 678 F.Supp. 250 (D.Kan.1988); Williams v. Trans World Airlines, Inc., 588 F.Supp. 1037 (W.D.Mo.1984); Hazard & Hodes, supra, at § 4.2:107 (Rule 4.2 violated where there is high risk former employee will disclose confidential information); cf. Lang v. Superior Court, 170 Ariz. 602, 826 P.2d 1228 (Ariz.App.1992). * * * * * * What the proposed Restatement does, however, is to extract the organizing principle from these various authorities. Only insofar as a former employee has been extensively exposed to confidential information and only insofar as an adversary attorney knows (or, it must be added, should reasonably know) of that fact, will ex parte contact be precluded. So long as privileged matters are respected, all other former employees remain fair game. This balancing of interests, in the Court’s view, is both fair and reasonable. Id. at 1121-22 (citations and footnotes omitted; emphases in original). Much ado has been made by Zachair’s counsel concerning Camden’s legitimacy, given that the Maryland Court of Appeals has not ruled on the issue whether Maryland Rule of Professional Conduct 4.2 covers former employees, and given that the Maryland State Bar Association has issued an ethics opinion, Docket 86-13, concluding that counsel is not forbidden from speaking ex parte with former employees of a corporate adverse party. It is settled, however, that the opinions issued by the Ethics Committee of the Maryland State Bar Association are not binding on the Court of Appeals. Attorney Grievance Commission of Maryland v. Gregory, 311 Md. 522, 531, 536 A.2d 646, 651 (1988). Thus, when faced with applying Maryland law to an issue of first impression," } ]

[ { "docid": "22647488", "title": "", "text": "mitigating that flood — the fact that many of these landowners’ claims are likely to be worthless because the cost of asserting them on a case-by-case basis will exceed their potential value — will do no judicial system credit. Not only does the practical desirability of sustaining ancillary jurisdiction bring Rule 23 (b) (3) class actions within the logic of our decisions, but the Court has long since recognized that fact, and has sustained ancillary jurisdiction over the nonappearing members in a class action who do not meet the requirements of traditional rule of complete diversity laid down in Strawbridge v. Curtiss, 3 Cranch 267 (1806). In Supreme Tribe of Ben Hur v. Cauble, 255 U. S. 356 (1921), the Court not only held that only the original named plaintiffs and defendants had to satisfy the diversity requirements, but it also stated that intervention by nondiverse members of the class would not destroy the District Court’s jurisdiction. Id., at 366. Particularly in view of the constitutional background on which the statutory diversity requirements are written, see 469 F. 2d 1033, 1038 (CA2 1972) (Timbers, J., dissenting), it is difficult to understand why the practical approach the Court took in Supreme Tribe of Ben-Hur must be abandoned where the purely statutory “matter in controversy” requirement is concerned. Certainly this result is not compelled by Snyder v. Harris, 394 U. S. 332 (1969), for that decision turned solely on whether federal diversity jurisdiction could be established over the “action.” Nor can I accept the Court’s contention that Snyder’s, citation to Clark v. Paul Gray, Inc., 306 U. S. 583 (1939), controls here. That case dealt only with the jurisdictional-amount requirements for the original named plaintiffs who litigated the case. Here petitioners clearly meet that requirement. Snyder’s characterization of Clark as a class action did not turn that case into a precedent for applying the jurisdictional-amount requirements to nonappearing class members who, so far as the Court indicated in Clark, were not even involved in that case. It would be far more consistent with Clark for the Court to rule, as it did" } ]

[ { "docid": "16942937", "title": "", "text": "to meet the amount in controversy requirements. A significant difference between that case and this one, however, is that, in this case, the parties agree that Ullman’s claims exceed $75,000.00; Safeway Insurance has not established that every putative class members’ claims exceed the jurisdictional minimum amount, but it does not need to, because the Court may exercise supplemental jurisdiction over the other claims. Before 2005, the Tenth Circuit rejected applying supplemental jurisdiction in this context, where the class representative met the jurisdictional amount but the other class members did not, see Martin v. Franklin Capital Corp., 251 F.3d 1284, 1294 (10th Cir.2001) (“This court has specifically rejected defendants’ contention that so long as the class representatives meet the jurisdictional amount, all class members fall within the court’s supplemental jurisdiction.”), but, as the Court has previously explained, a 2005 Supreme Court decision changed this result: In Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546 [125 S.Ct. 2611, 162 L.Ed.2d 502] (2005), the Supreme Court held that the supplemental jurisdiction statute, 28 U.S.C. § 1367, abrogated the long-standing rule of Zahn v. International Paper Co. 414 U.S. 291 [94 S.Ct. 505, 38 L.Ed.2d 511] (1973), [superseded by statute, 28 U.S.C. § 1367, as recognized in Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) ] that, in a diversity-only class action — such as an indirect purchaser class action brought under state antitrust laws — each class member must individually satisfy the amount-in-controversy requirement of the diversity jurisdiction statute. See Exxon Mobil Corp. v. Allapattah Sews., Inc., 545 U.S. at 558-59 [125 S.Ct. 2611]. The Court held that so long as the other elements of diversity jurisdiction are present and at least one named plaintiff has claims sufficient to meet the required jurisdictional amount, § 1367 authorizes the exercise of supplemental jurisdiction over the related claims of additional plaintiffs — including named and unnamed class members — even if those claims do not independently satisfy the jurisdictional minimum. See id. at 559 [125 S.Ct. 2611]. Trujillo v. Reynolds, CIV 07-1077 JB/ RLP," }, { "docid": "3027025", "title": "", "text": "economy dictates a present ruling on the remand issue. See generally Tortola Restaurants, L.P. v. Kimberly-Clark Corp., 987 F.Supp. 1186, 1188 (N.D.Cal.1997). 2. Diversity Jurisdiction Defendants first argue that the Court has diversity jurisdiction under 28 U.S.C. § 1332. The parties do not disagree that they are completely diverse, but they strongly dispute whether plaintiffs’ claims exceed the minimum amount in controversy of $75,000. Defendants argue that if the named class representative meets the amount in controversy requirement, the Court can exercise supplemental jurisdiction under 28 U.S.C. § 1367. The Tenth Circuit, however, held exactly opposite in Leonhardt v. Western Sugar Co., 160 F.3d 631, 640 (10th Cir.1998). Consequently, each class member must satisfy the amount in controversy requirement. Id. Plaintiffs allege that each class member has suffered damages under $75,-000, and the Court generally cannot aggregate the claims of class members to meet the amount in controversy requirement. See Zahn v. International Paper Co., 414 U.S. 291, 294-95, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973); Snyder v. Harris, 394 U.S. 332, 336-37, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969). Defendants therefore argue that the Court should aggregate the claims of individual class members because they seek to “enforce a single title or right in which they have a common and undivided interest.” Snyder, 394 U.S. at 335, 89 S.Ct. 1053; Zahn, 414 U.S. at 294, 94 S.Ct. 505. As the Court has previously stated, To establish a common and undivided interest, defendants must show that the claims of the putative class members derive from rights which they hold in group status. Potrero Hill Community Action Comm. v. Housing Auth. of City and County of San Francisco, 410 F.2d 974, 978 (9th Cir.1969); Pierson v. Source Perrier, S.A., 848 F.Supp. 1186, 1188 (E.D.Pa.1994). In other words, a class has a common and undivided interest “where only the class as a whole is entitled to the relief requested.” Loizon v. SMH Societe Suisse de Microelectronics, Et Horologerie S.A., 950 F.Supp. 250, 253 (N.D.Ill.1996). Even if plaintiffs’ claims present common questions of law and fact, as they must if they are to" }, { "docid": "15554616", "title": "", "text": "not self-evidently greater or less than the federal amount-in-controversy requirement.” Id. at 158 (citation omitted). In such eases, “the defendant must prove, ‘more likely than not,’ that the plaintiffs claims meet the federal amount-in-controversy requirement .” Id. (granting a motion for reconsideration where the defendant satisfied its burden on removal of showing the plaintiffs claims exceeded the amount-in-controversy requirement) (citation omitted). The court applies that preponderance of the evidence standard herein, since the Plaintiffs’ claims for fraud (which would allow recovery of punitive damages) and for attorney’s fees make it impossible to say they seek to recover an amount self-evidently less than $75,000. See, Garza v. Bettcher Indus., Inc., 752 F.Supp. 753, 763 (E.D.Mich.1990) (applying the preponderance of the evidence standard in finding the defendant had shown the case met the amount-in-controversy requirement). Thus, the court must remand this action unless AOL can show by a preponderance of the evidence that the Plaintiffs’ claims meet the amount-in-controversy requirement. II. LAW AND ANALYSIS A. Amount-in-Controversy in Class Claims 1. Aggregation of Class Claims The Plaintiffs do not dispute the diversity of citizenship between AOL and the putative plaintiff class. However, they do challenge AOL’s assertion that the “matter in controversy exceeds the sum or value of $75,000.” Specifically, the Plaintiffs assert that the amount in controversy must exceed $75,000 for each of the 270,000 plaintiffs in the putative class, an amount that would exceed a total of $20 billion . The Plaintiffs conclude that because there is no realistic possibility the plaintiff class could actually recover damages approaching that amount, this court must remand the case for lack of diversity jurisdiction. AOL responds by noting that the Plaintiffs have demanded attorney’s fees and punitive damages. AOL argues that an award of attorney’s fees and punitive damages is not properly allocated pro rata to each class member; rather, any award of punitive damages and attorney’s fees should be “aggregated,” so that a total award in this case— including compensatory damages, attorney’s fees and/or punitive damages — exceeding $75,000 would suffice to meet the amount-in-controversy requirement of 28 U.S.C. § 1332. AOL asserts" }, { "docid": "1911271", "title": "", "text": "§ 1332 over the class, as the plaintiffs alleged. Federal courts have diversity jurisdiction where there is complete diversity among the parties, and the amount in controversy meets the jurisdictional minimum. Each member of a class action must independently meet the jurisdictional amount requirement in order to establish diversity jurisdiction under 28 U.S.C. § 1332. Each member who fails to meet the jurisdictional amount must be dismissed from the case. Zahn v. International Paper Co., 414 U.S. 291, 301, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973) (holding that “[e]ach plaintiff in a Rule 23(b)(3) class action must satisfy the jurisdictional amount, and any plaintiff who does not must be dismissed from the case.”); Meritcare, 166 F.3d at 218. “Zahn does not require that an entire class action be dismissed for lack of subject matter jurisdiction over some of the class members. Rather, the court is required only to dismiss those class members whose claims appear to a ‘legal certainty’ to be less than the jurisdictional amount.” In re School Asbestos Litig., 921 F.2d 1310, 1315 (3d Cir.1990). As a general rule, the jurisdictional amount is determined from the good faith allegations appearing on the face of the complaint. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 82 L.Ed. 845 (1938). A complaint will be deemed to satisfy the required amount in controversy unless the defendant can show to a legal certainty that the plaintiff cannot recover that amount. Id. at 289, 58 S.Ct. 586. The Complaint here alleges generally that the amount in controversy in this action exceeds $75,000. (Compl. ¶¶ 22, 23). The Complaint also alleges that the named plaintiffs purchased Accumulator annuities in the amount of $10,000, {id. ¶ 7) (plaintiff Krapf), $75,000, {id. ¶¶ 5, 9) (plaintiffs Benevento and Rosenblum), $1,000,000, {id. ¶ 13) (plaintiff Maze), $110,364.44, {id. ¶ 15) (plaintiff Baskin), and $123,332. {Id. ¶ 11) (plaintiff Compaine). However, whereas the Complaint alleges that “Plaintiffs and all members of the Class sustained damages,” {id. ¶33), it does not allege that each class member suffered damages in the amount" }, { "docid": "6175327", "title": "", "text": "order was legally correct.” Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1106 (9th Cir.2000). Accordingly, in reviewing the district court’s award of sanctions and attorneys’ fees, we must address the merits of Chrysler’s arguments in favor of removal. III. Diversity Jurisdiction in the District Court The sole dispute in the district court was whether plaintiffs’ consolidated class action satisfied the $75,000 amount-in-controversy requirement of 28 U.S.C. § 1332. A defendant attempting to remove a diversity case must show by a preponderance of the evidence that the amount-in-controversy requirement is satisfied. See Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir.1997); Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403-04 (9th Cir.1996). Chrysler makes two arguments to support its conclusion that the amount-in-eon-troversy requirement was satisfied in the district court. Chrysler’s first argument relies on supplemental jurisdiction. Chrysler argues that the district court had original jurisdiction over the claims of individual plaintiffs who satisfied the amount-in-controversy requirement, and supplemental jurisdiction over the claims of the remaining class members who did not. Chrysler’s second argument is that the plaintiffs seek monetary compensation that is the “common and undivided interest” of the class members, and that the proper amount to consider for purposes of jurisdictional requirements is not each plaintiffs pro rata share, but rather the aggregated sum of those shares. For the reasons that follow, we disagree with both arguments. We agree with some aspects of Chrysler’s supplemental jurisdiction argument, but we disagree with others; considered as a whole, the argument fails. We disagree with the entirety of Chrysler’s aggregation argument. We consider the arguments in turn. A. Supplemental Jurisdiction 1. Supplemental Jurisdiction Based on Claims of Individual Named Plaintiffs Chrysler argued twice before the district court that there was federal subject matter jurisdiction over the entire class action, including the claims of the unnamed class members, because the individual named plaintiffs each had claims worth more than $75,000. Chrysler argued that 28 U.S.C. § 1367 confers supplemental jurisdiction over the claims of unnamed class members when there is subject matter jurisdiction over the" }, { "docid": "16942931", "title": "", "text": "in controversy exceeds the jurisdictional minimum for Ullman, but Bailey has not been fraudulently joined or procedurally misjoined, and thus, there is not complete diversity among the named parties. Accordingly, the Court will remand this class action to First Judicial District Court. I. ULLMAN’S CLAIMS SATISFY THE AMOUNT-IN-CONTROVERSY REQUIREMENT, ALLOWING THE COURT TO EXERCISE SUPPLEMENTAL JURISDICTION OVER THE PUTATIVE CLASS MEMBERS’ CLAIMS IF THEY SATISFY THE OTHER DIVERSITY JURISDICTION REQUIREMENTS. In the Notice of Removal, Safeway Insurance asserts that the amount in controversy exceeds the jurisdictional minimum of $75,000.00: Although Defendant Safeway does not admit that Plaintiff and the class may recover damages in any specific amount against Defendant Safeway, given the allegations in the Complaint there is a good faith basis to assert that the amount in controversy exceeds the $75,000 requirement of this Court. Plaintiffs Complaint prays for general, [Complaint, ¶¶52, 57, 67, 77(B), 83, 98] punitive, [Complaint, ¶¶ 63, 77(B), 103] and treble damages, [Complaint, ¶¶ 77(E) ] and stacked coverage of the reformed policies [Complaint, ¶ 60]. Plaintiff also includes costs and expenses of the action, and attorneys’ fees and costs in the Complaint. [Complaint, ¶ 77(H)-(J), 103]. Plaintiff contends she is entitled to an award of actual damages and punitive damages in an amount to be determined at trial. Plaintiffs damages may potentially include policy limits of $50,000. In Allsup’s Convenience Stores, Inc. v. N River Ins. Co., 1999-NMSC-006, ¶49, 127 N.M. 1, 976 P.2d 1, the New Mexico Supreme Court held that punitive damages that are 7.4 times compensatory damages were not violative of the Fourteenth Amendment to the United States Constitution. In sum, the cost of reforming policies to liability limits for the entire class would far exceed $75,000, as would the administrative costs that Defendant Safeway would have to bear. Notice of Removal ¶ 25, at 8. Ullman concedes that her damages likely exceed the jurisdictional minimum, but, citing Lovell v. State Farm Mutual Automobile Insurance Co., she argues that Safeway Insurance must also demonstrate that each putative class member’s damages exceed $75,000.00, which she contends Safeway Insurance cannot do. See Tr." }, { "docid": "7938614", "title": "", "text": "that a district court may exercise “ancillary jurisdiction” over “claims by a defending party haled into court against his will [against the plaintiff or third parties], or by another person whose rights might be irretrievably lost unless he could assert them in an ongoing action in a federal court.” Id. at 376, 98 S.Ct. at 2404. The Supreme Court has never expressly tied either of these doctrines — “pendent jurisdiction” and “ancillary jurisdiction”— to a particular statute; rather, these doctrines evolved solely as a matter of common law within the judiciary. When Congress enacted the Judicial Improvements Act of 1990, however, it attempted to combine and codify these doctrines under the rubric of “supplemental jurisdiction.” See Judicial Improvements Act of 1990, § 310(a), Pub.L. 101-650, Dec. 1, 1990, 104 Stat. 5089, codified at 28 U.S.C. § 1367. One important question that has arisen is how this statute applies in diversity-based class action suits, and the degree to which it overrules certain Supreme Court precedents. Before the enactment of § 1367, the Supreme Court had held that all plaintiffs in diversity-based class actions, including unnamed class members, had to meet the amount-in-controversy requirement set forth in the federal diversity statute, 28 U.S.C. § 1332, for diversity-based suits. Zahn v. Int’l Paper Co., 414 U.S. 291, 301, 94 S.Ct. 505, 512, 38 L.Ed.2d 511 (1973) (“Each plaintiff in a Rule 23(b)(3) class action must satisfy the jurisdictional amount, and any plaintiff who does not must be dismissed from the case.... ”). While the Zahn Court never expressly mentioned supplemental jurisdiction (or its antecedents, pendent and ancillary jurisdiction), thé ruling’s language was broad enough to preclude district courts from exercising any sort of jurisdiction over such plaintiffs. See id. at 301, 94 S.Ct. at 511 (“[A]ny plaintiff without the jurisdictional amount must be dismissed from the case, even though others allege jurisdic-tionally sufficient claims.”). Put simply, a district court could not entertain claims by class members who did not allege at least the jurisdictional amount in damages (now $75,000), even if the named plaintiffs overcame this hurdle. The Court based this conclusion on" }, { "docid": "23206654", "title": "", "text": "rejected defendants’ contention that so long as the class representatives meet the jurisdictional amount, all class members fall within the court’s supplemental jurisdiction. See Leonhardt, 160 F.3d at 638-41 (rejecting argument that “the enactment of 28 U.S.C. § 1367, concerning supplemental jurisdiction, altered the historical aggregation rules under § 1332 for class actions,” and concluding enactment of § 1367 did not overrule preexisting authority holding “each plaintiff in a diversity-based class action must meet the jurisdictional amount in controversy under § 1332”). In any event, because the class representatives here do not meet the jurisdictional amount, supplemental jurisdiction over class members would not be available. In sum, we hold that we have appellate jurisdiction over this final, appealable order. Defendants have failed to establish the requisite amount in controversy, and the district court therefore lacked subject matter jurisdiction. Accordingly, we REVERSE the judgment of the district court and REMAND with directions to remand this action to state court. . This action was filed in state court on September 13, 1996. At that time, 28 U.S.C. § 1332 required the amount in controversy to exceed $50,000. Although Congress subsequently amended the statute to increase the jurisdictional amount to $75,000, the amendment applies only to cases filed on or after January 17, 1997. See Federal Courts Improvement Act of 1996, § 205, Pub.L. No. 104-317, 110 Stat. 3847, 3850 (Oct. 19, 1996). . A few courts have placed greater or lesser burdens on defendants asserting removal jurisdiction based on diversity. See generally 14C Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3275 (3d ed. 1998), at 89-95 (discussing standards). . We give short shrift to defendants’ argument that the Martins waived federal diversity jurisdiction by failing to challenge the amount in controversy within thirty days. The governing statute expressly provides to the contrary: \"If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). As the Supreme Court has noted: section [1447(c)] differentiates between removals that are defective because of" }, { "docid": "19356418", "title": "", "text": "multiple plaintiffs, including class actions, the Supreme Court interprets the matter in controversy requirement of Section 1332 to require that each plaintiff independently meet the amount in controversy requirement. Zahn v. International Paper Co., 414 U.S. 291, 294-95, 94 S.Ct. 505, 508-09, 38 L.Ed.2d 511 (1973); Snyder v. Harris, 394 U.S. 332, 336-41, 89 S.Ct. 1053, 1056-59, 22 L.Ed.2d 319 (1969). In Zahn, the Supreme Court specifically held that each class action plaintiff “must satisfy the jurisdictional amount, and any plaintiff who does not must be dismissed from the case — ‘one plaintiff may not ride in on another’s coattails.”’ Zahn, 414 U.S. at 301, 94 S.Ct. at 512. Accordingly, the burden rests on defendants as the removing parties to demonstrate that each member of the class has a monetary claim which exceeds the jurisdictional amount. Compensatory Damages Defendants argue that even if the class representative does not meet the jurisdictional amount, “as many as one-half’ of the putative class members have individual claims in excess of $50,000 and that “there is no dispute that the Court has original diversity jurisdiction as to these class members pursuant to 28 U.S.C. § 1332.” Defendants urge the Court to exercise supplemental jurisdiction over 'the identical claims of the remaining class members under 28 U.S.C. § 1367. This argument has numerous problems, not least of which is that it lacks legal precedent. “[E]ven those courts which have declined to apply Zahn in its strictest sense have required that the named plaintiff meet the jurisdictional amount.” See Bishop v.. General Motors Corp., 925 F.Supp. 294, 299 (D.N.J.1996); see also In re Abbott Laboratories, 51 F.3d 524, 529 (5th Cir.1995)(where class representatives met amount in controversy requirement, court could exercise supplemental jurisdiction over class members who did not, under § 1367); Deep v. Manufacturers Life Ins. Co., 944 F.Supp. 358, 363 (D.N.J.1996)(same); Leroy Cattle Co., Inc. v. Fina Oil & Chemical Co., 1994 WL 151105, *7 (D.Kan. Mar.2, 1994)(where class representative did not meet amount in controversy requirement, court did not exercise supplemental jurisdiction over class members who did, under § 1367). Earlier this year," }, { "docid": "19356417", "title": "", "text": "which exceed $50,000 and it does not purport to restrict their right to recover full compensation for the damages sustained. Defendants are therefore required to demonstrate by a preponderance of the evidence that the jurisdictional amount is present as to plaintiff and each other member of the class. See also Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir.1995) (if not facially apparent that plaintiffs claims are likely above $50,000, removing party may support federal jurisdiction by establishing facts that support finding of requisite amount). When defendants removed this case, 28 U.S.C. § 1332(a) provided that “[federal] district courts shall have 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 ... citizens of different states....” It is undisputed that diversity of citizenship is present, as Amundson and defendants are citizens of different states. The sole issue is whether the matter in controversy exceeds the sum or value of $50,000. In cases involving multiple plaintiffs, including class actions, the Supreme Court interprets the matter in controversy requirement of Section 1332 to require that each plaintiff independently meet the amount in controversy requirement. Zahn v. International Paper Co., 414 U.S. 291, 294-95, 94 S.Ct. 505, 508-09, 38 L.Ed.2d 511 (1973); Snyder v. Harris, 394 U.S. 332, 336-41, 89 S.Ct. 1053, 1056-59, 22 L.Ed.2d 319 (1969). In Zahn, the Supreme Court specifically held that each class action plaintiff “must satisfy the jurisdictional amount, and any plaintiff who does not must be dismissed from the case — ‘one plaintiff may not ride in on another’s coattails.”’ Zahn, 414 U.S. at 301, 94 S.Ct. at 512. Accordingly, the burden rests on defendants as the removing parties to demonstrate that each member of the class has a monetary claim which exceeds the jurisdictional amount. Compensatory Damages Defendants argue that even if the class representative does not meet the jurisdictional amount, “as many as one-half’ of the putative class members have individual claims in excess of $50,000 and that “there is no dispute that" }, { "docid": "17072237", "title": "", "text": "husband caused by Trovan, an antibiotic manufactured by Pfizer. She sought to recover general and special damages resulting from the loss of consortium as well as punitive damages. Only state-law claims were pled. Ros-mer is a resident of South Carolina. Pfizer is a Delaware corporation with its principal place of business in New York. The parties agree that Rosmer’s individual claim exceeded $75,000. The complaint alleged, however, that some class members suffered less than $75,000 in actual and punitive damages. Pfizer removed this action from state court to the United States District Court for the District of South Carolina, basing federal subject matter jurisdiction on 28 U.S.C. §§ 1332 and 1367. Pfizer maintained that the district court had original jurisdiction under § 1332 over Rosmer’s claims because she and Pfizer were of diverse citizenship, and Rosmer’s claims exceeded $75,000. See 28 U.S.C.A. § 1332 (West Supp.1999). Pfizer then contended that where the district court had original jurisdiction over the named plaintiff, it had supplemental jurisdiction under 28 U.S.C. § 1367 over the claims of all class members regardless of whether each of their claims independently satisfied § 1332’s amount in controversy requirement. Rosmer moved to remand the action to state court alleging a lack of federal subject matter jurisdiction. The district court held that subject matter jurisdiction was appropriate in this case and denied Ros-mer’s motion to remand. At the same time, the court certified its order for interlocutory review under 28 U.S.C. § 1292(b). This court granted Rosmer’s petition for interlocutory review, and Rosmer now appeals. II. In 1973, the Supreme Court held that in a class action, multiple plaintiffs with separate and distinct claims must each satisfy the jurisdictional amount for diversity suits in federal courts. See Zahn v. Int’l Paper Co., 414 U.S. 291, 300-01, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973). The Court concluded that “any plaintiff without the jurisdictional amount must be dismissed from the case, even though others allege jurisdietionally sufficient claims.” Id. at 300, 94 S.Ct. 505. The rule that all plaintiffs in a class action must independently satisfy the amount in controversy" }, { "docid": "3564307", "title": "", "text": "negligence, negligent infliction of emotional distress, and violation of RICO. Plaintiffs also seek to represent a class of over a thousand people who have allegedly installed defendants’ siding. Defendants’ motion seeks, inter alia, to dismiss the class claims because of a failure to allege that each member of the class has sustained damages in excess of the jurisdiction amount. II. Aggregation of Class Claims Defendants contend that plaintiffs fail to satisfy the amount in controversy requirement for a class action because they do not allege that each member’s claim exceeds the jurisdictional minimum. The Supreme Court has previously held that in a diversity based class action, where the class members assert separate and distinct claims, each class member must independently meet the amount-in-controversy requirement to establish diversity jurisdiction over his or her claim. Zahn v. International Paper Co., 414 U.S. 291, 301, 94 S.Ct. 505, 512, 38 L.Ed.2d 511 (1973); Snyder v. Harris, 394 U.S. 332, 338, 89 S.Ct. 1053, 1058, 22 L.Ed.2d 319 (1969). On the other hand, where the plaintiffs have joined together to “enforce a single title or right, in which they have a common and undivided interest, it is enough if their interests collectively equal the jurisdictional amount.” Troy Bank v. G.A. Whitehead & Co., 222 U.S. 39, 40-41, 32 S.Ct. 9, 9-10, 56 L.Ed. 81 (1911), cited in Zahn, 414 U.S. at 294, 94 S.Ct. at 508. Plaintiffs do not attempt to argue that all class members have a common and undivided interest such that they can evade the non-aggregation rule of Zahn. Rather, plaintiffs contend that in 28 U.S.C. § 1367 Congress overruled Zahn. 28 U.S.C. § 1367 contains two subsections which raise the question of whether Zahn is still good law. First, subsection 1367(a) provides district courts with supplemental jurisdiction over related claims. Second, subsection 1367(b) carves out exceptions to this grant of jurisdiction for diversity cases. Class actions are not among the exceptions listed in § 1367(b). Thus, the court is presented with a question of statutory construction as to whether the absence of class actions in the list of exceptions constitutes" }, { "docid": "15189126", "title": "", "text": "carrier failed to accurately disclose biding practice not governed by FCA); Weinberg v. Sprint Corp., 165 F.R.D. 431 (D.N.J.1996) (same). The substantial federal question doctrine does not support the removal of this case to federal court. V. DIVERSITY OF CITIZENSHIP JURISDICTION Original jurisdiction exists in the district courts in all civil actions where the matter in controversy exceeds the sum of $75,000 and is between citizens of different states. 28 U.S.C. § 1332. The party asserting federal jurisdiction has the burden of proof to show that the required amount in controversy is met. Hatridge v. Aetna Casualty & Surety Co., 415 F.2d 809, 814 (8th Cir.1969). When the complaint does not allege a specific amount, the removing defendant must prove by a preponderance of the evidence that the amount in controversy meets the jurisdictional amount. Trimble v. Asarco, Inc. 232 F.3d 946, 959 (8th Cir.2000); Gilmer v. Walt Disney Co., 915 F.Supp. 1001,1007 (W.D.Ark.1996). It is undisputed that complete diversity exists between the parties. Rather, the issue is whether the amount in controversy requirement is satisfied. Plaintiff affirmatively represents that the “damages, restitution, injunctive and other relief individually sought by Plaintiff and the class including their pro rata share of punitive damages or attorneys’ fees awarded pursuant to this action, if any, is below the jurisdictional requirement” for federal diversity jurisdiction. (Complaint at ¶ 7). As a general rule, where the plaintiffs in a class action suit have separate and distinct claims, each claim must satisfy the jurisdictional amount requirement for diversity jurisdiction. Zahn v. International Paper Company, 414 U.S. 291, 301, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973)(refusing to overrule Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319(1969)). Here, neither the Plaintiff nor any individual Class Member seeks or is entitled to individual damages in excess of the $75,000 threshold amount. Defendants implicitly concede this point, and instead focus their argument on the appropriate valuation of Plaintiff’s claims for injunctive relief and the equitable remedy of disgorgement. Alternatively, Defendant proposes that Plaintiffs claim for disgorgement of proceeds collected by AT & T creates a common" }, { "docid": "23008116", "title": "", "text": "§ 627.428, there is no basis for attributing the attorney’s fees only to the named plaintiffs. For amount in controversy purposes, the amount of fees must be attributed pro rata among all of the class members, resulting in a relatively small sum for each member. C. REMAND On the record before us, the claims in this putative class action do not satisfy the amount in controversy requirement for diversity jurisdiction. Neither the compensatory damages, potential punitive damages, attorney’s fees, nor the injunctive relief may be aggregated. In addition, it seems evident that none of the named plaintiffs possesses an individual claim that approaches the $75,000 required for diversity jurisdiction. However, the plaintiffs maintain that there are some class members who have suffered substantial damages from uncompensated diminished value. Because the amount in controversy issue was not raised until appeal, the plaintiffs were not afforded the opportunity to determine whether such class members exist, and if so, to present evidence of that fact to the district court. Thus, we remand the case to grant the plaintiffs an opportunity to prove there are class members who can make a “good faith” allegation that their claims for compensatory damages approach or exceed $75,000. If the plaintiffs carry their burden of proof with respect to this jurisdictional issue, see McNutt, 298 U.S. at 189, 56 S.Ct. at 785 (stating that jurisdictional facts must be established by a preponderance of evidence), then the district court will have diversity jurisdiction over the claims of those class members. It should then address the plaintiffs’ argument that 28 U.S.C. § 1367 has overruled Zahn to authorize supplemental jurisdiction over the class members whose claims do not satisfy the requisite amount in controversy. If the court decides that Zahn is still the law, only individuals with claims sufficient to satisfy the amount in controversy requirement may proceed as plaintiffs. If the plaintiffs do not prove that there are class members whose individual claims satisfy the amount in controversy requirement, the district court must dismiss the case for lack of jurisdiction. One final note is in order. Because jurisdiction cannot" }, { "docid": "11766711", "title": "", "text": "jurisdictional minimum. Plaintiff contends that in order for this Court to exercise diversity jurisdiction upon removal, defendants must establish complete diversity of citizenship and an amount in controversy in excess of $75,000 for the named plaintiff and each member of the proposed class. Plaintiff cites the Supreme Court decisions in Zahn v. International Paper Co,, 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), and Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969), in support of this contention. Plaintiff alleges that defendants have made a bald assertion that the amount in controversy exceeds the jurisdictional minimum without showing how they have computed the amount in controversy or upon what grounds defendants base their speculation. Plaintiff provides a declaration which asserts that for the period in question, Tortola Restaurants purchased $4,340 per year in commercial sanitary paper. See Scarpulla Decl. ¶ 2. Plaintiff contends that even if one hundred percent of that amount-is included in plaintiff’s damages and trebled as' provided for under California’s Cartwright Act, the amount would still not exceed the jurisdictional minimum. Defendants do not dispute this assertion. Defendants contend that the Judicial Improvements Act of 1990, 28 U.S.C. § 1367(a), impliedly overruled Zahn, and that it is no longer required, that each class member separately satisfy the federal jurisdictional minimum. Defendants argue that as long as any class member — representative or absent— meets the $75,000 threshold, the Court can exercise supplemental jurisdiction over the claims of class members whose claims do not meet the jurisdictional minimum. Defendants further argue that named plaintiff Tortola cannot limit the claims of the other class members without some “binding assurance” that class members will not seek recoveries in state court which would place them within this Court’s jurisdiction. a. Zahn. In light of the legislative history , and the ensuing ease law relevant to the issue, this Court agrees with those courts that have found that the Judicial Improvements Act did not overrule the Supreme Court decision in Zahn. See e.g., Snider v. Stimson Lumber Co., 914 F.Supp. 388, 392 (E.D.Cal.1996) (“Congress did not" }, { "docid": "3027024", "title": "", "text": "case shall be remanded.” 28 U.S.C. § 1447(c). While staying the proceedings might allow a single district court to rule on the jurisdictional issue in the various cases, a stay would not affect the law that applies to the present case and little would be gained by a stay of decision on the motion to remand. The parties would still be subject to Kansas law. No great judicial economy will be realized from a delay. The parties will not save time, for they have already briefed the remand issue. The Court is well versed in both Kansas and federal law, while the transferor court would need to apply the law of different states to different claims. See Karofsky v. Abbott Laboratories, 921 F.Supp. 18, 21 n. 4 (D.Me.1996) (easier for federal judge in forum state to resolve issues implicating state law). For purposes of judicial economy, the jurisdictional issue should be resolved immediately. If federal jurisdiction does not exist, the case can be remanded before federal resources are further expended. In the Court’s view, judicial economy dictates a present ruling on the remand issue. See generally Tortola Restaurants, L.P. v. Kimberly-Clark Corp., 987 F.Supp. 1186, 1188 (N.D.Cal.1997). 2. Diversity Jurisdiction Defendants first argue that the Court has diversity jurisdiction under 28 U.S.C. § 1332. The parties do not disagree that they are completely diverse, but they strongly dispute whether plaintiffs’ claims exceed the minimum amount in controversy of $75,000. Defendants argue that if the named class representative meets the amount in controversy requirement, the Court can exercise supplemental jurisdiction under 28 U.S.C. § 1367. The Tenth Circuit, however, held exactly opposite in Leonhardt v. Western Sugar Co., 160 F.3d 631, 640 (10th Cir.1998). Consequently, each class member must satisfy the amount in controversy requirement. Id. Plaintiffs allege that each class member has suffered damages under $75,-000, and the Court generally cannot aggregate the claims of class members to meet the amount in controversy requirement. See Zahn v. International Paper Co., 414 U.S. 291, 294-95, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973); Snyder v. Harris, 394 U.S. 332, 336-37, 89 S.Ct." }, { "docid": "1911270", "title": "", "text": "Life USA or members of the immediate family of any officer or director of Life USA or any entity in which Life USA has a controlling interest or the heir, successor or assign of any such excluded party. (A-26). LifeUSA has timely appealed. II Plaintiffs filed this class action complaint against LifeUSA in the United States District Court for the Eastern District of Pennsylvania. The District Court’s jurisdiction was premised on 28 U.S.C. § 1332, as this case is an action between citizens of different states wherein the amount in controversy ostensibly exceeds $75,000, exclusive of interests and costs. (Compl. ¶ 22). After extensive discovery, on September 29, 1999, the District Court denied LifeU-SA’s motion for summary judgment, and on January 13, 2000, granted plaintiffs’ motion for class certification. (A-3-24). LifeUSA moved before us to appeal pursuant to Rule 23(f) of the Federal Rules of Civil Procedure. On June 5, 2000, this Court granted LifeUSA’s motion. A threshold issue which came to our attention is whether the District Court had diversity jurisdiction under 28 U.S.C. § 1332 over the class, as the plaintiffs alleged. Federal courts have diversity jurisdiction where there is complete diversity among the parties, and the amount in controversy meets the jurisdictional minimum. Each member of a class action must independently meet the jurisdictional amount requirement in order to establish diversity jurisdiction under 28 U.S.C. § 1332. Each member who fails to meet the jurisdictional amount must be dismissed from the case. Zahn v. International Paper Co., 414 U.S. 291, 301, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973) (holding that “[e]ach plaintiff in a Rule 23(b)(3) class action must satisfy the jurisdictional amount, and any plaintiff who does not must be dismissed from the case.”); Meritcare, 166 F.3d at 218. “Zahn does not require that an entire class action be dismissed for lack of subject matter jurisdiction over some of the class members. Rather, the court is required only to dismiss those class members whose claims appear to a ‘legal certainty’ to be less than the jurisdictional amount.” In re School Asbestos Litig., 921 F.2d 1310, 1315" }, { "docid": "16942930", "title": "", "text": "may pursue from the UIM insurers $175,000.00. See 2013-NMSC-006, ¶ 18. The primary UIM insurer pays its entire $100,000, leaving the secondary UIM insurers obligated to pay a prorated portion of $75,000. One secondary insurer pays $42,857.14, which is 4/7ths (100,000/175,000) of $75,000; one pays $21,428.57, which is 2/7ths (50,000/175,-000) of $75,000; and the remaining secondary insurer pays $10,714.29, which is l/7th (25,000/175,000) of $75,000. In no case will the insured receive more than the limits of the insured’s UIM coverage minus the tortfeasor’s liability payment or more than the insured’s damages minus the tortfeasor’s liability payment, whichever is less. 2013-NMSC-006, ¶ 19. Because the tortfeasor’s liability limits are taken into consideration in what the UIM insurers must pay the injured insured, there is no “offset” to award: the injured insured will not receive more than he or she is permitted under the UIM statute. 2013-NMSC006, ¶ 15. ANALYSIS Safeway Insurance fails to meet its burden to establish that all of the prerequisites of diversity jurisdiction in 28 U.S.C. § 1332 are satisfied. The amount in controversy exceeds the jurisdictional minimum for Ullman, but Bailey has not been fraudulently joined or procedurally misjoined, and thus, there is not complete diversity among the named parties. Accordingly, the Court will remand this class action to First Judicial District Court. I. ULLMAN’S CLAIMS SATISFY THE AMOUNT-IN-CONTROVERSY REQUIREMENT, ALLOWING THE COURT TO EXERCISE SUPPLEMENTAL JURISDICTION OVER THE PUTATIVE CLASS MEMBERS’ CLAIMS IF THEY SATISFY THE OTHER DIVERSITY JURISDICTION REQUIREMENTS. In the Notice of Removal, Safeway Insurance asserts that the amount in controversy exceeds the jurisdictional minimum of $75,000.00: Although Defendant Safeway does not admit that Plaintiff and the class may recover damages in any specific amount against Defendant Safeway, given the allegations in the Complaint there is a good faith basis to assert that the amount in controversy exceeds the $75,000 requirement of this Court. Plaintiffs Complaint prays for general, [Complaint, ¶¶52, 57, 67, 77(B), 83, 98] punitive, [Complaint, ¶¶ 63, 77(B), 103] and treble damages, [Complaint, ¶¶ 77(E) ] and stacked coverage of the reformed policies [Complaint, ¶ 60]. Plaintiff also includes costs" }, { "docid": "13801487", "title": "", "text": "be untimely if Plaintiff had served or otherwise provided Defendant with a copy of the original complaint in this case more than 30 days prior to the filing of the Notice of Removal. 28 U.S.C. § 1446(b). However, there is no indication in the Maricopa County Superior Court docket sheet, which was included in the record, that the original complaint was ever served on or otherwise provided to Defendant. Moreover, Plaintiff has not raised the timeliness of the Notice of Removal as a ground for remanding this ease. As such, this Court concludes that Plaintiff has waived the timeliness of the Notice of Removal as a basis for remand. Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir.1980) (party may waive objection to untimely removal petition by sitting on one’s rights). B. Amount in Controversy Requirement Diversity jurisdiction is proper only if the matter is between citizens of different states and the amount in controversy exceeds the sum of $50,000. 28 U.S.C. § 1332. There is no dispute that the parties in the instant ease are diverse. Thus, the sole issue to be resolved is whether the amount in controversy exceeds $50,000 for Plaintiff and each class member. In a class action suit, each plaintiffs claim must satisfy the jurisdictional amount requirement. Zahn v. International Paper Co., 414 U.S. 291, 301, 94 S.Ct. 505, 512, 38 L.Ed.2d 511 (1973). If the plaintiffs complaint does not allege a specific amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $50,-000. Sanchez v. Monumental Life Ins. Co., 95 F.3d 856, 862 (9th Cir.1996); Gaus, 980 F.2d at 566-67. The defendant must set forth evidence establishing that it is more likely than not that the amount in controversy exceeds the required amount. Sanchez, 95 F.3d at 862 (quotation and citation omitted). Conclusory allegations that the damages are in excess of the jurisdictionally required sum are insufficient. Gaus, 980 F.2d at 567. In the instant ease, because Plaintiffs complaint does not allege a specific amount of damages, Defendant must prove by a" }, { "docid": "13801488", "title": "", "text": "instant ease are diverse. Thus, the sole issue to be resolved is whether the amount in controversy exceeds $50,000 for Plaintiff and each class member. In a class action suit, each plaintiffs claim must satisfy the jurisdictional amount requirement. Zahn v. International Paper Co., 414 U.S. 291, 301, 94 S.Ct. 505, 512, 38 L.Ed.2d 511 (1973). If the plaintiffs complaint does not allege a specific amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $50,-000. Sanchez v. Monumental Life Ins. Co., 95 F.3d 856, 862 (9th Cir.1996); Gaus, 980 F.2d at 566-67. The defendant must set forth evidence establishing that it is more likely than not that the amount in controversy exceeds the required amount. Sanchez, 95 F.3d at 862 (quotation and citation omitted). Conclusory allegations that the damages are in excess of the jurisdictionally required sum are insufficient. Gaus, 980 F.2d at 567. In the instant ease, because Plaintiffs complaint does not allege a specific amount of damages, Defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $50,000 for Plaintiff and each class member. Actual Damages Actual damages in this case is likely to be quite small per plaintiff. Plaintiff seeks to recover a return of her Med Pay premiums and interest accrued therefrom. (Am.Compl. ¶¶ 7, 37, 41, 45.) Plaintiff Haisch contends in the Motion to Remand that she personally expended $968 in Med Pay premiums over a six-year period. (Pl.’s Mot. Remand at 2.) Thus, the actual damages alleged by Plaintiff Haisch amount to approximately $1,000.00. Defendant has failed to dispute this figure or otherwise argue that any of the class members’ actual damages are significantly higher. Thus, Defendant has failed to show that any of the class members’ actual damages will significantly contribute towards meeting the $50,000 jurisdictional threshold. Injunctive Relief With respect to Plaintiffs request for in-junctive relief, she merely seeks that Defendant “cease and desist from engaging in the conduct” alleged in the complaint. (Am. Compl. at 11.) Because the Ninth Circuit has firmly rejected the examination" } ]

[ { "docid": "11448196", "title": "", "text": "of law and fact. See J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 64 (2d Cir.2000) (reviewing de novo the application of statutory and regulatory definitions in an IDEA case). I. IDEA A. Mootness At oral argument, we questioned sua sponte whether this case may be moot because D.H. was then (as he is now) between his 22nd and 23rd birthdays. Our decision in Burr v. Ambach, 863 F.2d 1071 (2d Cir.1988), as well as some decisions in other circuits, could be read to hold that an IDEA claimant “ages out” on his twenty-first birthday. See id. at 1075, 1078-79 (addressing whether an award of compensatory education to remedy IDEA violations can “continue beyond a child’s twenty-first birthday”); Board of Educ. v. Illinois State Bd. Of Educ., 79 F.3d 654, 656 (7th Cir.1996) (“the Act entitles disabled individuals to special education assistance only until they reach the age of 21”); Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir.1994) (IDEA benefits expire upon “reaching age 21”). But see Pihl v. Massachusetts Dep’t of Educ., 9 F.3d 184, 189 (1st Cir.1993) (“he ceased to be eligible for educational services under the IDEA in 1988, when he turned 22”). If so, this case would be moot notwithstanding the year of compensatory education awarded by the district court. After reviewing supplementary briefs from the parties, we conclude that IDEA originally entitled D.H. to a FAPE until his 22nd birthday. The additional year of IDEA coverage awarded by the district court thus preserves the case from mootness. Under 20 U.S.C. § 1412(a)(1)(A), IDEA applies to persons “between the ages of 3 and 21, inclusive.” The word “inclusive,” which must be given meaning, is unnecessary to assure the inclusion of someone aged four, or someone aged 14, or even someone in his 20th year (which culminates in his 21st birthday); their inclusion is obvious without the emphasis. If the word “inclusive” is to mean something, as it must, it means that the relevant period begins on a child’s third birthday and ends on the last day of his 21st year" } ]

[ { "docid": "22582164", "title": "", "text": "101 (2d Cir.1996) (“[MJere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation or demonstrated probability of recurrence.”) (internal quotation marks and citation omitted). In Honig, \"a case on which Lill-bask heavily relies, the Supreme Court noted that controversies have sometimes been found “capable of repetition based on expectations that, while reasonable, were hardly demonstrably probable.” 484 U.S. at 319 n. 6, 108 S.Ct. 592. This court, however, has explicitly rejected efforts to read Honig broadly to require “only that repetition could possibly occur, not that there is a probability that it will [occur].” Deeper Life Christian Fellowship, Inc. v. Sobol, 948 F.2d 79, 82 (2d Cir.1991) (“We do not believe that the majority in Honig went that far.”). In Honig, an emotionally disturbed student claimed that education authorities had violated the EHA by excluding him from school in response to his disruptive and dangerous behavior. In concluding that there was a “reasonable likelihood” that the challenged exclusion would recur in that case, the Supreme Court focused on three^ factors: (1) the student’s statutory right to a free appropriate public education “to the maximum extent appropriate” with children without disabilities, Honig v. Doe, 484 U.S. at 318, 321, 108 S.Ct. 592 (quoting 20 U.S.C. § 1412(5) (1994)); (2) the unusual “nature of [the student’s] disability,” id. at 318, 108 S.Ct. 592; and (3) the school officials’ insistence on their right unilaterally to exclude the student from class, see id. at 318-19, 108 S.Ct. 592. Applying those same three factors to this case, we conclude that only the first weighs in Lill-bask’s favor. Because Lindsey is thirteen years old, he will remain eligible for a free appropriate public education with non-disabled peers for several more years, until he “graduate[s] from high school or reaches age .twenty-one, whichever occurs first.” Conn. Gen.Stat. § 10-76d(b) (2003). The remaining two factors, however, demonstrate that repetition of the defendants’ challenged conduct — -the proposed removal of Lindsey from the Redding public schools — is not reasonably likely but, at best;" }, { "docid": "15068132", "title": "", "text": "and 300.501 regarding parent participation in the process.” The Court finds no error in the hearing officer’s conclusion. No mandate exists to compel the School Board to include minutes of the IEP or attach the parents’ written statement of disagreement. Review of the administrative record, including the correspondence between the parents and the school, demonstrates that the parents had sufficient opportunity to review the program goals and objectives, and to discuss changes to the draft IEP. The hearing officer also found that the school board had not committed a procedural violation by changing the plaintiffs exit criteria to “attainment of maximum age” without the consent of the parents. Plaintiff argues that applying exit criteria based on attainment of the maximum age, rather than receipt of a high school diploma, effectively blocks plaintiff from being educated in the regular education environment. This Court agrees with the hearing officer’s reasoning that the exit criteria based on attainment of age ensures plaintiffs maximum entitlement to a free appropriate public education. As cited by the hearing officer, 34 C.F.R. Section 300.122(a)(3)(ii) provides that if a student graduates but is not awarded a regular high school diploma, that student maintains his eligibility for special education until he ages out or is awarded a regular high school diploma. Similarly, Section 10-76d-l(a)(7) of the Connecticut Agencies Regulations provides that a student who has not received a regular high school diploma continues to be eligible for special education and related services until the end of the school year in which the student turns twenty-one (21) years of age. However, pursuant to 34 C.F.R. Section 300.122(a)(3)®, the School Board is not obligated to make a free appropriate public education available to a student who has graduated from high school with a regular high school diploma. Thus, age based criteria is most protective of plaintiffs rights. 2. Substantive Review Plaintiff argues that the hearing officer’s decision placing plaintiff in the special education multicategorical program violates the IDEA’S mandate that a child be provided with special education and related services in the least restrictive environment consistent with a child’s needs. 20" }, { "docid": "20758995", "title": "", "text": "F.Supp.2d at 89-93. Plaintiffs subsequently moved voluntarily to dismiss their claims under the “stay put” provision of the IDEA, 20 U.S.C. § 1415(j), the Due Process Clause, U.S. Const, amend. V, and District of Columbia regulations regarding a free appropriate public education (“FAPE”) for “highly mobile children,” 5-E D.C.M.R. § 3002.1(e). See Joint Motion [200] 2, Sept. 15, 2010. The Court granted plaintiffs’ motion. Order [201] 1, Sept. 22, 2010. 104. Plaintiffs and the class they represent bring each of their remaining claims against all defendants. B. FAPE Violation 105. The IDEA’S primary mandate is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.... ” 20 U.S.C. § 1400(d)(1)(A). 106. 20 U.S.C. § 1412(a) makes Part B funding available if the State “has in effect policies and procedures to ensure that ... [a] free appropriate public education is available to all children with disabilities residing in the State between ages 3 and 21, inclusive.... ” 107. The term “free appropriate public education” means special education and related services that: (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State education agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under [section 1414(d) ]. 20 U.S.C. § 1401(9). 108. District of Columbia law incorporates the federal FAPE obligations and requires: All local education agencies (LEA) in the District of Columbia [to] ensure, pursuant to the Individuals with Disabilities Education Act (IDEA), that all children with disabilities, ages three to twenty-two, who are residents or wards of the District of Columbia, have available to them a free appropriate public education (FAPE) and that the rights of these children and their parents are protected. 5-E D.C.M.R. § 3000.1. 109. 5-E D.C.M.R. § 3002.1(a) also requires the LEA to provide a FAPE to each child with a disability. 110. This Court has previously" }, { "docid": "6894765", "title": "", "text": "29 U.S.C. § 794(a). Both § 504 and IDEA have been interpreted as requiring states to provide a free appropriate public education to qualified handicapped persons, but only IDEA requires development of an IEP and specifically provides for transition services to assist students prepare for a post-high school environment. See 20 U.S.C. § 1401(a)(20). Under the statutory scheme, the school district is not free to choose which statute it prefers, as Yankton School District acknowledges in its reply brief. If a student is eligible under IDEA, appropriate services, including transition benefits, shall be provided. Id. § 1401(a)(20). That some of those services may also be mandated by the Rehabilitation Act does not mean they are not “specially designed instruction” under IDEA. Since Tracy still requires and receives special education and related services as defined by IDEA, the district remains obligated to cooperate in fashioning an IEP for the coming year to include necessary transition services. Id. B. The school district also contends that the district court erred in stating that Tracy’s eligibility for transition services under IDEA would continue until age 21. The district court made this statement during its discussion of the Schramms’ request for an award of compensatory education in the area of transition services. In denying any compensatory award, the court reasoned that Tracy’s eligibility for transition services until age 21 would give sufficient time for her to benefit from them. All children with disabilities are generally entitled to a free appropriate public education under IDEA between the ages of 3 and 21. 20 U.S.C. § 1412(2)(B). An exception exists where state law or practice does not provide for free public education for stu dents between the ages of 18 and 21. Id. Under South Dakota law, a free public education is provided until a student has completed the secondary program or reached the age of 21. SDCL § 13-28-5. Tracy plans on graduating from high school at the end of the 1996-97 school year, at which time she will be 19 years old. Assuming that she graduates as planned, the district is correct that it will" }, { "docid": "20758996", "title": "", "text": "107. The term “free appropriate public education” means special education and related services that: (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State education agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under [section 1414(d) ]. 20 U.S.C. § 1401(9). 108. District of Columbia law incorporates the federal FAPE obligations and requires: All local education agencies (LEA) in the District of Columbia [to] ensure, pursuant to the Individuals with Disabilities Education Act (IDEA), that all children with disabilities, ages three to twenty-two, who are residents or wards of the District of Columbia, have available to them a free appropriate public education (FAPE) and that the rights of these children and their parents are protected. 5-E D.C.M.R. § 3000.1. 109. 5-E D.C.M.R. § 3002.1(a) also requires the LEA to provide a FAPE to each child with a disability. 110. This Court has previously held that, “at least through and including the year 2007, defendants denied a FAPE to a large number of children aged 3 to 5 years old, in violation of § 1412(a)(1)(A) of the IDEA.” DL, 730 F.Supp.2d at 95. 111. Based on paragraphs 23-32 of the above findings of fact, the Court holds that, from 2008 to April 6, 2011 (the first day of trial), defendants failed to provide a FAPE to a substantial number of District of Columbia children with disabilities, ages three to five years old, in violation of 20 U.S.C. § 1412(a)(1)(A) of the IDEA. 112. This Court has previously held, based upon its determination that defendants had violated § 1412(a)(1)(A) of the IDEA, that “at least through and including the year 2007, defendants’ actions constitute violations of District of Columbia law, D.C. Mun. Regs. tit. 5-E, §§ 3000.1, 3002.1(a), 3002.1(d), and 3002.3(a), because this local law creates the same standards as those in federal law.” Id, at 24. 113. Based upon paragraphs 23-32 of the above findings of fact, the Court" }, { "docid": "6894766", "title": "", "text": "under IDEA would continue until age 21. The district court made this statement during its discussion of the Schramms’ request for an award of compensatory education in the area of transition services. In denying any compensatory award, the court reasoned that Tracy’s eligibility for transition services until age 21 would give sufficient time for her to benefit from them. All children with disabilities are generally entitled to a free appropriate public education under IDEA between the ages of 3 and 21. 20 U.S.C. § 1412(2)(B). An exception exists where state law or practice does not provide for free public education for stu dents between the ages of 18 and 21. Id. Under South Dakota law, a free public education is provided until a student has completed the secondary program or reached the age of 21. SDCL § 13-28-5. Tracy plans on graduating from high school at the end of the 1996-97 school year, at which time she will be 19 years old. Assuming that she graduates as planned, the district is correct that it will not be responsible for providing her with transition services under IDEA after her completion of high school. 20 U.S.C. § 1412(2)(B). C. Finally, the school district argues that the district court abused its discretion in awarding the Schramms attorney fees and costs. It points out that the Schramms received free legal representation by a publicly funded group called the South Dakota Advocacy Services, and contends that an award penalizes it for grappling with complex legal issues in the attempt to comply with IDEA requirements. Under the statute, a court has discretion to award reasonable attorney fees as part of the costs to prevailing parents or guardians of a child or youth with a disability. Id. § 1415(e)(4)(B). A party prevails if it succeeded on any significant issue which achieved some of the benefit it sought. Borengasser v. Arkansas State Bd. of Educ., 996 F.2d 196, 200 (8th Cir.1993). Unless “special circumstances” exist to make an award unjust, attorney fees should ordinarily be awarded to the prevailing party. Id. at 199. We review an award of" }, { "docid": "1377017", "title": "", "text": "to address plaintiffs specific educational needs. After her graduation from high school in June 2002, plaintiff began attending a program run by the DOE at Queens Occupational Training Center (“Queens”). Mary Somoza — plaintiffs mother and advocate, to whom plaintiff has delegated authority for educational decisions — became dissatisfied with the Queens program and lodged complaints with the DOE. In response, the DOE authorized Dr. Blau to evaluate plaintiff and to recommend and develop an appropriate educational program. The DOE and plaintiff developed a new IEP, and in November 2002 she was placed in an individualized, customized program developed and administered by Dr. Blau (“the Blau Program”). The DOE agreed to fund the Blau Program, without competitive bidding, at an annual cost of $400,000 for the remainder of the 2002-2003 academic year as well as the 2003-2004 and 2004-2005 academic years. Plaintiff appeared to make significant improvement during her time in the Blau Program, and she and her mother reported their satisfaction with the Program. Dr. Blau noted these improvements and also concluded, in early 2003, that plaintiff had been denied a FAPE during her approximately thirteen years in the public schools. As of June 2005, the end of the school year in which she reached the age of twenty-one, plaintiff was no longer eligible for the DOE to fund her education. See 20 U.S.C. § 1412(a)(1)(A); N.Y. Educ. Law § 4402(5) (stating that the DOE is not required to fund such educational services for a person after the age of twenty-one or the receipt of a high school diploma). Plaintiffs mother contacted the DOE to request an additional year of funding of the Blau Program. Although plaintiff was no longer eligible for such funding under the terms of the governing statutes, the DOE agreed to fund the Blau program until June 2006 on the condition that plaintiff, through her mother, sign a proposed stipulation and release (“the Agreement”). Plaintiffs mother signed the Agreement, which included the following provision releasing the DOE from any liability for claims that plaintiff did not receive a free and public education under the IDEA:" }, { "docid": "1463388", "title": "", "text": "T.L. and K.L. and they resolved it. In 2012-13, while there are allegations that KL.’s conduct continued in the same fashion as it had occurred in the 2011-12 school year, there is no evidence that before mid-November 2012, Defendants were aware of any harassment issues with K.L. Further, there is no evidence in the record that before early to mid-December 2012, Defendants were aware of any ongoing sexual harassment issues between K.L. and T.L. As a result, the evidence, even when construed in a light most favorable to T.L., produces only one reasonable conclusion: Defendants were not deliberately indifferent. The Ninth Circuit has made clear that to be actionable under Title IX, an educational institution’s response to harassment must be “ ‘clearly unreasonable in light of the known circumstances[.]’ ” Oden v. N. Marianas Coll., 440 F.3d 1085, 1089 (9th Cir.2006) (quoting Davis, 526 U.S. at 648, 119 S.Ct. 1661). “In other words, we must decide whether, on this record, one could find that the College made ‘an official decision ... not to remedy the violation.’ ” Id. (quoting Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998)). Negligent or careless conduct is not deliberate indifference. Id. And, that the remedy imposed by the educational institution is not the preferred remedy of the victim does not create an issue of fact with regard to deliberate indifference. Id. In response to M.K.’s complaint in November 2012, SCS conducted an investigation and suspended K.L. for 2.5 days, even though the investigation failed to establish conclusively that. he had threatened her with his penis. SCS also had a threat assessment performed by a team of professionals including a mental health specialist, a counselor, Raboli, KL.’s own behavioral specialist, and a school resource officer. This occurred within a week or two of M.K’s complaint. Based on input from the threat assessment team, the school put a safety plan in place which restricted access between K.L. and M.K. When K.L. made another threat on his first day back after the suspension for the M.K. incident, he" }, { "docid": "22582191", "title": "", "text": "possible disputed issues of fact. Rather, the motion serves as a \"pragmatic procedural mechanism” for reviewing a state’s compliance with the procedures set forth in IDEA and determining whether the challenged IEP is reasonably calculated to enable the child to receive educational benefits. Warton v. New Fairfield Board of Educ., 217 F.Supp.2d 261, 270 (D.Conn.2002); see Wall v. Mattituck-Cutchogue Sch. Dist., 945 F.Supp. 501, 508 & n. 6 (E.D.N.Y.1996) (analogizing the role Rule 56 motions play in allowing courts to review administrative determinations in IDEA cases to the role Rule 12(c) motions play in allowing administrative review of Social Security determinations); see also Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892 (9th Cir.1995) (\"Though the parties [in an IDEA action] may call the procedure 'a motion for summary judgment' ..., the procedure is in substance an appeal from an administrative determination, not a summary judgment.''). . IDEA provides that \"[a] free appropriate public education is available to all children with disabilities ... between the ages of 3 and 21, inclusive.” 20 U.S.C. § 1412(a)(1)(A). We have interpreted the word \"inclusive,” in this provision, to indicate that a child remains eligible for a free appropriate education under IDEA until his 22nd birthday. See St. Johnsbury Acad. v. D.H., 240 F.3d 163, 168 (2d Cir.2001) (\"If the word ‘inclusive’ is to mean something, as it must, it means that the relevant period begins on a child's third birthday and ends on the last day of his 21st year (which culminates in his 22nd birthday).”). IDEA further provides, however, that \"[t]he obligation to make a free appropriate public education available to all children with disabilities does not apply with respect to children aged ... 18 through 21 in a State to the extent that its application to those children would be inconsistent with State law or practice.” 20 U.S.C. § 1412(a)(1)(B)(i). Thus, because Connecticut law is more restrictive on this point than IDEA, it controls the term of Lindsey's eligibility for a free appropriate education under IDEA. . The decision rendered after the fourth due process hearing in this case concludes," }, { "docid": "1377028", "title": "", "text": "child with a disability receives a FAPE from as early as age three until at least age eighteen. See 20 U.S.C. § 1412(a)(1)(A) (providing IDEA funding to states to ensure that eligible children receive a FAPE). Under New York law, a child is “no longer entitled to the protections and benefits of the [IDEA],” Honig v. Doe, 484 U.S. 305, 318, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988), after the age of twenty-one and “does not have a right to demand a public education beyond [that] age,” Mrs. C. v. Wheaton, 916 F.2d 69, 75 (2d Cir.1990). As of the end of the 2004-2005 academic year, when plaintiff reached the age of twenty-one, the DOE was no longer required to fund the Blau Program or otherwise provide a FAPE to plaintiff. To its credit, the DOE extended its funding of the Blau Program for an additional year as a matter of grace. Plaintiff now requests additional funding for the Blau Program as compensatory educational services, see note 2 ante, on the basis that she was denied a FAPE for the entirety of her thirteen years in public schools. There are two limitations periods that could potentially be applied to plaintiffs claim: the one-year period applicable at the time that plaintiffs claims accrued and the two-year limitations period applicable at the time that plaintiff brought her suit. Because we conclude that plaintiffs claims would be untimely under either limitations period, we need not address which period applies. An IDEA claim accrues on the date that a plaintiff or his parent “knew or should have known about the alleged action that forms the basis of the complaint.” 20 U.S.C. § 1415(b)(6)(B). The parties agreed, and the District Court found, that plaintiffs mother knew or should have known about the alleged denials of a FAPE during the 2002-03 academic year — the point at which plaintiffs mother “[first] observed her daughter’s rapid improvement in the Blau Program and that Blau, an expert in the field of special education, expressed the opinion that [plaintiff] had not previously received a FAPE.” Somoza, 475 F.Supp.2d at" }, { "docid": "7853490", "title": "", "text": "make a FAPE available to all children with disabilities between the ages of three and twenty-one. 20 U.S.C. §§ 1400(d)(1)(A), 1412(a)(1). The appellees contend that Pace’s IDEA claims are moot because he is now 23 years old and no longer attends Bogalusa High School. Although a plaintiff beyond the statutory age of entitlement has no right to seek injunctive relief requiring compliance with the IDEA, Honig v. Doe, 484 U.S. 305, 318, 108 S.Ct. 592, 601, 98 L.Ed.2d 686, 703 (1988), he may seek compensation for violations of statutory rights that occurred while he was entitled to them. Pihl v. Mass. Dep’t of Educ., 9 F.3d 184, 189 (1st Cir.1993); Lester H. v. Gilhool, 916 F.2d 865, 872 (3d Cir.1990). Because compensatory education is an available remedy for individuals over the age of 21 who were denied a FAPE when they were covered by the IDEA, Pihl, 9 F.3d at 185; Lester H., 916 F.2d at 873; see also Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 63 (1st Cir.2002) (compensatory education is an available remedy after graduation), we turn to the merits of Pace’s IDEA claims. The IDEA imposes extensive requirements on participating states and local agencies to safeguard the disabled child’s right to a FAPE. 20 U.S.C. §§ 1414, 1415. The primary safeguard is the IEP, Honig, 484 U.S. at 311, 108 S.Ct. at 597, 98 L.Ed.2d at 699, a written statement prepared by a representative of the local school district, the disabled child’s teachers and parents, and, whenever appropriate, the child, 20 U.S.C. § 1414(d). The IEP sets forth, inter alia, the child’s present educational performance, annual and short-term goals, and educational and related services that will be provided for the child to meet the stated objectives, id., thereby tailoring the FAPE to the particular needs of the child, Cypress-Fairbanks Indep. Sch. Dist., 118 F.3d at 247. The-FAPE described in an IEP “need not be the best possible one, nor one that will maximize the child’s educational potential; rather, it need only be an education that is specifically designed to meet the child’s unique needs, supported by" }, { "docid": "4812877", "title": "", "text": "and Mrs. D. However, as noted above, the court there recognized that to the extent that the Section 504 claim arises out of the same set of facts as the IDEA claim, it is subject to the requirement of exhaustion of administrative remedies. The plaintiffs also rely on M.K. v. Sergi, 554 F.Supp.2d 201 (D.Conn.2008). However, there the court noted with respect to the Section 504 and other claims that were premised on two particular contentions that “[b]oth of these issues were addressed to some degree by the Hearing Officer in her first decision. To that extent, there has been an exhaustion of administrative remedies and the Court will consider them.” Id. at 219-20. Finally, the plaintiffs rely on Brennan v. Reg’l Sch. Dist. No. 1, 531 F.Supp.2d 245 (D.Conn.2008), citing it as an example of a case where “FAPE related Section 504 claims raised for the first time on appeal of administrative hearing decision were allowed.” Opp. 10. However, the plaintiff concedes that there is no indication in Brennan as to whether the issue of exhaustion of administrative remedies was ever raised in relation to the Section 504 claims. Therefore, the Section 504 claim is being dismissed for the reason that the court lacks subject matter jurisdiction because administrative remedies were not exhausted. IV. CONCLUSION Accordingly, the Defendant’s Motion to Dismiss (Doc. No. 15) is hereby GRANTED. The portion of Count One as to school years prior to the 2009-2010 school year and Count Two are dismissed. It is so ordered. . Sec. 10-76h-4 provides: (a) A parly shall have two years to request a hearing from, the time the public agency proposed or refused to initiate or change the identification, evaluation or educational placement of, or the provision of a free appropriate public education to the child.... (b) This limitation does not apply to evidence, provided admission of such evidence shall meet evidentiary considerations such as relevance and materiality and shall be ruled upon by the hearing officer." }, { "docid": "1377018", "title": "", "text": "2003, that plaintiff had been denied a FAPE during her approximately thirteen years in the public schools. As of June 2005, the end of the school year in which she reached the age of twenty-one, plaintiff was no longer eligible for the DOE to fund her education. See 20 U.S.C. § 1412(a)(1)(A); N.Y. Educ. Law § 4402(5) (stating that the DOE is not required to fund such educational services for a person after the age of twenty-one or the receipt of a high school diploma). Plaintiffs mother contacted the DOE to request an additional year of funding of the Blau Program. Although plaintiff was no longer eligible for such funding under the terms of the governing statutes, the DOE agreed to fund the Blau program until June 2006 on the condition that plaintiff, through her mother, sign a proposed stipulation and release (“the Agreement”). Plaintiffs mother signed the Agreement, which included the following provision releasing the DOE from any liability for claims that plaintiff did not receive a free and public education under the IDEA: Release I Mary Somoza individually and on behalf of Alba Somoza in consideration of an extension of one school year of services as outlined above do hereby release and discharge the defendant New York City Board of Education, also known as the New York City Department of Education ... from any and all claims alleged, and all claims and/or rights of actions that were or could have been alleged against any of the released parties based on any act, omission, event or occurrence from the beginning of the world up to and including the date of the execution of this Release, including, without limitation, ... any claims that Alba Somoza did not receive and/or was not offered a free and appropriate public education, as well as all claims for costs, expenses and attorney’s fees. Under the terms of the Agreement, funding for the Blau Program was to expire on June 30, 2006. Before the expiration date, plaintiffs mother made another request to the DOE for an extension of the funding. The DOE denied that request" }, { "docid": "15393278", "title": "", "text": "must establish policies and procedures that provide a free appropriate public education to all disabled students of the state “between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school.” 20 U.S.C. § 1412(a)(1)(A). The IDEA permits states to opt out of providing a free and appropriate public education to students ages 3-5 or 18-21 if the state does not provide public education to nondisabled students in those age groups. Indiana’s policy, as found in the state regulation states: Public school corporations shall provide special education for all students five (5) years of age but less than twenty-two (22) years of age identified as disabled under this article, unless the student has completed high school graduation requirements. 511IAC 7-4-l(b) Under this standard, a student who is 22 years old or older, or who has graduated, is not entitled to a free appropriate public education. B. Mr. Brett’s Current Age Does Not Moot His Claims Defendants argue that Brett was not protected by the IDEA after he graduated, and they assert that this case is moot because Brett is now 24 years old. Defendants’ age-related mootness argument is based on Brett’s current age, not his age at the time of the hearing officer’s 1996 decision. The hearing officer found the 1996 case to be moot, not because Brett was then 19 years old, but because he had graduated. The state could have provided him a free appropriate public education at the time of the hearing officer’s decision when Brett was younger than 22, had he not graduated. Brett filed suit in federal court on June 19, 1997, his 20th birthday, and he is now 24 years old. His age exceeded the regulation’s limit of 22 years old while this case was pending. In Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988), Doe filed suit seeking injunctive relief when he was a 17 year-old student. Id. at 312-14, 108 S.Ct. 592. The district court issued an injunction directing the school district to institute new policies involving certain types" }, { "docid": "15393277", "title": "", "text": "but it does not designate it as a specific count. To the extent that Brett alleges a violation of equal protection, that claim, though actionable separately from the IDEA, is governed by the same free appropriate public education standard. Board of Educ. v. Rowley, 458 U.S. 176, 200, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (holding that “neither the [IDEA] nor its history persuasively demonstrates that Congress thought that equal protection required anything more than equal access [to a free appropriate public education]”). IV. BRETT’S CLAIMS ARE NOT MOOT Defendants argue that this case is moot because Brett is now 24 years old and because he has graduated from high school. Brett responds by claiming that he is entitled to “compensatory education,” a judicially constructed form of relief designed to remedy the past educational failings for students who are no longer enrolled in public school due to their age or graduation. Pihl v. Massachusetts Dept. of Educ., 9 F.3d 184 (1st Cir.1993) A. Indiana’s Eligibility Regulations A state that receives monetary assistance under the IDEA must establish policies and procedures that provide a free appropriate public education to all disabled students of the state “between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school.” 20 U.S.C. § 1412(a)(1)(A). The IDEA permits states to opt out of providing a free and appropriate public education to students ages 3-5 or 18-21 if the state does not provide public education to nondisabled students in those age groups. Indiana’s policy, as found in the state regulation states: Public school corporations shall provide special education for all students five (5) years of age but less than twenty-two (22) years of age identified as disabled under this article, unless the student has completed high school graduation requirements. 511IAC 7-4-l(b) Under this standard, a student who is 22 years old or older, or who has graduated, is not entitled to a free appropriate public education. B. Mr. Brett’s Current Age Does Not Moot His Claims Defendants argue that Brett was not protected by the IDEA after he" }, { "docid": "1377027", "title": "", "text": "America, 468 F.3d 117, 119 (2d Cir.2006) (internal quotation marks omitted). In the instant case, the District Court decided that the DOE’s affirmative defenses were without merit, remanded the case to the agency, and ordered the Clerk to close the case. Somoza, 475 F.Supp.2d at 396. Such a decision constitutes a final order for the purposes of 28 U.S.C. § 1291. See Nelson, 468 F.3d at 119 (concluding that an order was final because we could “state with assurance that no further proceeding will occur in the district court regarding any matter touching on the subject of this appeal”). Accordingly, we have jurisdiction to review the District Court’s order. II. Preliminary Injunction Congress enacted the IDEA “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.... ” 20 U.S.C. § 1400(d)(1)(A); see also Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363 (2d Cir.2006). To that end, the IDEA guarantees that a child with a disability receives a FAPE from as early as age three until at least age eighteen. See 20 U.S.C. § 1412(a)(1)(A) (providing IDEA funding to states to ensure that eligible children receive a FAPE). Under New York law, a child is “no longer entitled to the protections and benefits of the [IDEA],” Honig v. Doe, 484 U.S. 305, 318, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988), after the age of twenty-one and “does not have a right to demand a public education beyond [that] age,” Mrs. C. v. Wheaton, 916 F.2d 69, 75 (2d Cir.1990). As of the end of the 2004-2005 academic year, when plaintiff reached the age of twenty-one, the DOE was no longer required to fund the Blau Program or otherwise provide a FAPE to plaintiff. To its credit, the DOE extended its funding of the Blau Program for an additional year as a matter of grace. Plaintiff now requests additional funding for the Blau Program as compensatory educational services, see note 2 ante, on the basis that she was" }, { "docid": "22582192", "title": "", "text": "1412(a)(1)(A). We have interpreted the word \"inclusive,” in this provision, to indicate that a child remains eligible for a free appropriate education under IDEA until his 22nd birthday. See St. Johnsbury Acad. v. D.H., 240 F.3d 163, 168 (2d Cir.2001) (\"If the word ‘inclusive’ is to mean something, as it must, it means that the relevant period begins on a child's third birthday and ends on the last day of his 21st year (which culminates in his 22nd birthday).”). IDEA further provides, however, that \"[t]he obligation to make a free appropriate public education available to all children with disabilities does not apply with respect to children aged ... 18 through 21 in a State to the extent that its application to those children would be inconsistent with State law or practice.” 20 U.S.C. § 1412(a)(1)(B)(i). Thus, because Connecticut law is more restrictive on this point than IDEA, it controls the term of Lindsey's eligibility for a free appropriate education under IDEA. . The decision rendered after the fourth due process hearing in this case concludes, without explanation, that Lindsey's placement in the Redding public schools would likely have an adverse effect on the educational opportunities of other students. To the extent defendants elaborate on this concern in their appellate brief, they reference only the disruptive effect that for some time Lillbask — not Lindsey — had on the work of Redding school staff. See Br. for Redding Appellees, at 23-24. Apparently, during the years when IDEA'S stay-put provision kept Lindsey in the Redding schools, the adults in this case, i.e., Lillbask and school staff, have managed to put aside their hostilities, at least to the extent necessary to help Lindsey make the undisputed progress that he has achieved. . In some stay-put cases, courts have recognized a plaintiffs right to sue for collateral injury in the form of reimbursement or compensatory education. See, e.g., Maine Sch. Admin. Dist. No. 35 v. Mr. & Mrs. R., 321 F.3d 9, 17-18 (1st Cir.2003); Independent Sch. Dist. No. 284 v. A.C., 258 F.3d 769, 774-75 (8th Cir.2001); Capistrano Unified Sch. Dist. v. Wartenberg," }, { "docid": "15068133", "title": "", "text": "Section 300.122(a)(3)(ii) provides that if a student graduates but is not awarded a regular high school diploma, that student maintains his eligibility for special education until he ages out or is awarded a regular high school diploma. Similarly, Section 10-76d-l(a)(7) of the Connecticut Agencies Regulations provides that a student who has not received a regular high school diploma continues to be eligible for special education and related services until the end of the school year in which the student turns twenty-one (21) years of age. However, pursuant to 34 C.F.R. Section 300.122(a)(3)®, the School Board is not obligated to make a free appropriate public education available to a student who has graduated from high school with a regular high school diploma. Thus, age based criteria is most protective of plaintiffs rights. 2. Substantive Review Plaintiff argues that the hearing officer’s decision placing plaintiff in the special education multicategorical program violates the IDEA’S mandate that a child be provided with special education and related services in the least restrictive environment consistent with a child’s needs. 20 U.S.C. § 1412(a)(5)(A); Walczak, 142 F.3d at 132. Relying exclusively on Rowley’s two part test, defendant argues that summary judgment should enter in its favor since (1) it complied with the Act’s procedures, and (2) the IEP developed was reasonably calculated to enable the plaintiff to receive educational benefits. Defendant contends that the Court cannot find that plaintiff was denied free access to an appropriate public education unless the School Board failed to provide a “basic floor of opportunity” and access to appropriate specialized instruction and related services. As stated in Rowley, the IDEA requires that states receiving money under the IDEA must educate handicapped children “with children who are not handicapped” to the maximum extent appropriate. 34 C.F.R. § 300.550(b). The IDEA’S preference for mainstreaming “rises to the level of a rebuttable presumption.” Sacramento City Unified School District v. Holland, 786 F.Supp. 874, 877 (E.D.Cal.1992). The Fifth Circuit remarked that Row-ley ’s analysis is ill suited for evaluating compliance with the IDEA’S mainstream or least restrictive environment [“LRE”] requirement. Daniel R.R. v. State Bd." }, { "docid": "22582165", "title": "", "text": "in that case, the Supreme Court focused on three^ factors: (1) the student’s statutory right to a free appropriate public education “to the maximum extent appropriate” with children without disabilities, Honig v. Doe, 484 U.S. at 318, 321, 108 S.Ct. 592 (quoting 20 U.S.C. § 1412(5) (1994)); (2) the unusual “nature of [the student’s] disability,” id. at 318, 108 S.Ct. 592; and (3) the school officials’ insistence on their right unilaterally to exclude the student from class, see id. at 318-19, 108 S.Ct. 592. Applying those same three factors to this case, we conclude that only the first weighs in Lill-bask’s favor. Because Lindsey is thirteen years old, he will remain eligible for a free appropriate public education with non-disabled peers for several more years, until he “graduate[s] from high school or reaches age .twenty-one, whichever occurs first.” Conn. Gen.Stat. § 10-76d(b) (2003). The remaining two factors, however, demonstrate that repetition of the defendants’ challenged conduct — -the proposed removal of Lindsey from the Redding public schools — is not reasonably likely but, at best; only a theoretical and .speculative possibility. (1) Nothing in the Nature of Lindsey’s Disabilities Suggests that Defendants Will Likely Recommend His Removal from the Redding Public .. Schools In Honig, there was an, inextricable link between the disability at issue — an emotional disturbance originating in the child’s history of physical and emotional abuse — • and the conduct that prompted the challenged exclusion — disruptive behavior, including stealing, extortion, and sexual harassment. See 484 U.S. at 314-15, 108 S.Ct. 592. Precisely because it was the child’s “inability to conform his conduct to socially acceptable norms that rendered] him ‘handicapped’ ” under federal law, the Supreme Court cast off its usual reluctance “to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of ... injury.” Id. at 320, 108 S.Ct. 592. Noting extensive record evidence that the child could not “govern his aggressive, impulsive behavior,” the Supreme Court concluded that, in “the unique circumstances and context of this case,” it was “reasonable" }, { "docid": "1377015", "title": "", "text": "JOSÉ A. CABRANES, Circuit Judge: Plaintiff Alba Somoza is a multiply-handicapped twenty-three-year-old woman. From the time of her attendance in preschool until January 2008, she received special educational services from defendant New York City Department of Education (“DOE”), as required by the Individuals with Disabilities in Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482. After her statutory entitlement to a free appropriate public education (“FAPE”) expired at the end of the 2004-2005 academic year, plaintiff brought an administrative claim against the DOE, alleging the denial of a FAPE for her entire tenure in the public schools. As relief, plaintiff sought two years of compensatory education. While her administrative claims were pending, plaintiff sought injunctive relief in the U.S. District Court for the Southern District of New York to prevent DOE from terminating the funding of her educational services. The District Court (Victor Marrero, Judge) entered a preliminary injunction requiring the DOE to fund plaintiffs services until the completion of the administrative appeals process. This civil appeal followed. We heard oral argument on December 13, 2007, and entered an order on January 3, 2008, vacating the District Court’s preliminary injunction and indicating that an opinion would follow to explain the Court’s holding. We now write to clarify that, because plaintiffs claims are time-barred under both potentially applicable statutes of limitations, the District Court erred as a matter of law in granting the requested injunction. BACKGROUND The following section is based in substantial part on the recitation of facts from the District Court’s February 21, 2007 Decision and Order. See Somoza v. New York City Dep’t of Educ., 475 F.Supp.2d 373 (S.D.N.Y.2007). Factual Background Plaintiff received special educational services from the DOE from preschool until the January 2008, as required by the IDEA. In accordance with her Individualized Education Plan (“IEP”), plaintiff attended and graduated from high school in the New York City public schools. From 1991 through 1993, at the direction of the DOE, plaintiff was evaluated by a special education expert, Dr. Andrea Blau, who assisted in the monitoring of plaintiffs progress and made recommendations to the DOE regarding possible accommodations" } ]

[ { "docid": "5562977", "title": "", "text": "did not contend that the transition provisions of the 2000 regulations applied to the Project. The Forest Service only considered authorization of the Project under the “1982 rule,” those regulations in place prior to the 2000 amendments. See 36 C.F.R. § 219.19 (1999). In a Rule 28(j) letter filed one week before oral argument, the Forest Service informed us of the Department’s publication of an interpretative rule in September 2004. 69 Fed.Reg. 58,055 (Sept. 29, 2004); see also Fed. R.App. P. 28(j). The interpretative rule explained that the 2000 regulations rendered the 1982 rule inoperative for project-specific decisions made after November 9, 2000. The interpretative rule clarified that, during the transition period between November 2000 and promulgation of a final rule, the Forest Service should use the “best available science” under § 219.35(a) for project decisions. 69 Fed.Reg. at 58,056. New rules replaced the 2000 planning regulations in January 2005. See 70 Fed.Reg. 1023 (Jan. 5, 2005). We conclude, however, that the transition provisions of the 2000 regulations do not apply to the Project’s authorization, and we review Forest Service obligations under the 1982 rule instead. First, the Forest Service stated at oral argument that it “elected” to apply the 1982 rule when it approved the Project. See 36 C.F.R. § 219.35(b) (2001); see also Aple’s Br. at 8 n. 2 (“The Forest Service promulgated the [] Forest Plan and decided to undertake the Thousand Lakes project under the 1982 planning rule.”) (emphasis added). While the Forest Service now contends that it was not required to comply with the 1982 rule, it nonetheless exercised its discretion to apply the 1982 rule when issuing its Decision Notice and Final Decision. The agency’s choice of methodology is entitled to deference. See Custer County Action Ass’n, 256 F.3d at 1036. Second, in another case involving a Fishlake National Forest project, we treated the 1982 rule, rather than the transition provision of § 219.35(a), as “[t]he regulations in effect at the time of the disputed Forest Service decisions” made in December 2000. Utah Envtl. Cong. v. Bosivorth, 372 F.3d 1219, 1221 n. 1 (10th" } ]

[ { "docid": "5027182", "title": "", "text": "the 2000 planning regulations, particularly the application of the \"best available science” standard during the transition period. As a result, on September 29, 2004, the Forest Service issued an \"interpretative rule” stating that the agency should use the \"best available science” standard during the transition period from November 2000 until promulgation of a final rule. 69 Fed.Reg. 58,055, 58,056 (Sept. 29, 2004). The Forest Service subsequently published its final planning regulations. 70 Fed.Reg. 1022 (Jan. 5, 2005). It is not surprising that \"courts have expressed considerable confusion in applying the 2000 transition provisions.” Bosworth, 443 F.3d at 745. . Ecology Center failed to provide the Record of Decision, which is a required portion of the record because it is the decision “from which the appeal is taken.” 10th Cir R. 10.3(C)(5). The Forest Service attempted to rectify this deficiency when it supplied an excerpt of the Record of Decision in its Supplemental Appendix and Supplemental Excerpts. See 10th Cir. R. 30.2(A) (“An appellee who believes that the appellant's appendix omits items that should be included may file a supplemental appendix with its answer brief.”); 10th Cir. R. 10.3(B) (\"When the party asserting an issue fails to provide a record sufficient for considering that issue, the court may decline to consider it.”). Neither party has provided a sufficient record or appendix in this case. However, the excerpt of the Record of Decision makes no mention of the applicable rules, and does not even include the phrase \"best available science” anywhere in the pages provided. Rather, the Record of Decision appears to have applied the 1982 rules, referencing Management Indicator Species, which are not part of the 2000 transition rule's approach. See Aples' Supp.App. vol. Ill, at 847-53 (pages 1, 3, 5-6, 9, 18-19 of ROD dated March 27, 2003); Aples’ Supp. Excerpts vol. II, at 472-78 (same). Because only an excerpt was provided, we assume that there are no other provisions relevant to the Forest Service's argument. . We note that we have not found, nor have the parties cited, any cases that define “best available science” in today's context. However," }, { "docid": "14103252", "title": "", "text": "at *8. Thus, the \"current plan” in place when the Trout Slope West project was approved was the 1986 version. . UEC insists that the forest plan’s reference to § 219.27 necessarily incorporates § 219.19 because § 219.27 \"does reference, explicitly cite and incorporate direction from § 219.19.” Aplt. Rep. Br. at 26 (citing Utah Envtl. Cong. v. Bosworth, 372 F.3d 1219, 1225 (10th Cir.2004) [hereinafter UEC I ]). UEC I, however, considered § 219.27 and § 219.19 in the context of whether § 219.19 applies to site-specific project planning, not whether reference to either section in a Forest Plan incorporates the 1982 monitoring requirements. See 372 F.3d at 1225. . The Forest Service conceded at oral argument that it must follow the forest plan and suggested that the plan did not conflict with the regulatory requirement to consider the \"best available science.” . In his concurrence and dissent in UEC IV, Judge McConnell notes that there is \"no precedent justifying reversal of significant agency action, affirmed by the district court, on the basis of a challenge the plaintiff did not make in district court and did not make in this Court.” UEC IV, 479 F.3d at 1290. Nevertheless, the majority in UEC TV clearly viewed application of the proper planning standard as a legal matter, intertwined with the merits of the challenge, to be addressed by this court, and we, of course, are bound by that decision. . Because the 2000 transition regulations mandate use of the “best available science,” and were implemented after the 1986 forest plan, the regulations may preempt some monitoring provisions of the 1986 forest plan, assuming those monitoring provisions are not based on the \"best available science.” Furthermore, there is a possibility that the forest plan, by its reference to “future law, regulations, policies and standards and guidelines,” might incorporate the “best available science” standard in lieu of its original monitoring provisions. Despite the Forest Service's suggestion that the forest plan appears to be consistent with the “best available science standard,” the parties did not brief these questions, and given that the Forest Service" }, { "docid": "16567664", "title": "", "text": "obsolete”). In an attempt to address this confusion, the Forest Service issued an interpretative rule on September 29, 2004. Introducing the rule, the Forest Service explained: [I]t is clear that site-specific decisions entered into during the transition period are not to comply with the substantive provisions of the 2000 planning rule. This interpretative rule clarifies that until a new final rule is promulgated, the transition provisions of the 2000 planning rule, as amended by the May 2002 interim final rule remain in effect.... 69 Fed.Reg. 58,055, 58,056 (Sept. 29, 2004). The interpretative provision emphasized that “responsible officials consider the best available science in implementing national forest land management plans and, as appropriate, plan amendments.” Id. As to the continuing vitality of the 1982 provisions: [T]he 1982 planning rule may continue to be used only for plan amendments and revisions upon election of the responsible official. Appropriate plan amendments and projects proposed during the transition period should be developed considering the best available science in accordance with § 219.35 paragraph (a). Id. As we explained in UEC II, “the 2000 regulations rendered the 1982 rule inoperative for project-specific decisions made after November 9, 2000. The interpretative rule stated that, during the transition period between November 2000 and promulgation of a final rule, the Forest Service should use the ‘best available science’ under § 219.35(a) for project decisions.” UEC II, 439 F.3d at 1189. We afford an agency’s interpretation of its own regulations “substantial deference,” Olenhouse, 42 F.3d at 1576, except in those instances where such interpretation is “unreasonable, plainly erroneous, or inconsistent with the regulation’s plain meaning.” Bar MK Ranches, 994 F.2d at 738. We recognize, of course, that although interpretative rules can inform our decision, they do not have the force and effect of law in the adjudicatory process. Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 99, 115 S.Ct. 1232, 131 L.Ed.2d 106 (1995). In conducting our analysis, then, we are guided primarily by the plain meaning of the 2000 transition provisions as well as the Forest Service’s interpretative rule. However, before looking at this language, it is important" }, { "docid": "16567645", "title": "", "text": "local forest officials found “that the spruce beetle infestation in the Seven Mile Project area has escalated substantially during the past 8 years ... [and] at least 80 percent mortality will occur in non-infested spruce in the absence of thinning.” Id. at 551. The district manager assured that (1) “three snags per acre will be retained ... [as well as] snags containing nest cavities or offering potential nesting opportunities ... to provide for [foraging and nesting] for three-toed woodpeckers;” (2) although “no sensitive species are known to occur in the project area, and suitable habitat has not been found,” local forest rangers “will continue to survey the project area for all sensitive species during pre- and post-treatment activities;” and (3) if any goshawk are discovered during the “ongoing surveys [ ] being conducted for the northern goshawk,” the Forest Service will act appropriately “to conserve this species.” Id. at 550. C. Decision Beloiv Following the Forest Service’s authorization of the Seven Mile Project, UEC filed suit in district court, alleging the Forest Service’s authorization of the Seven Mile Project violated NEPA, NFMA, and the Administrative Procedures Act (“APA”). In April 2005, the district court found in favor of the Forest Service on all claims. The district court concluded that the Forest Service did not act arbitrarily in applying Category 14. Furthermore, the court found that the Forest Service adequately monitored the management indicator species in accordance with the Fishlake Forest Plan. In reaching these conclusions, the court held that the 1982 planning rules were not applicable to the Seven Mile Project and instead applied the 2000 planning rules. II. Standard of Review Because neither NEPA nor NFMA provide a private right of action, this court reviews the Forest Service’s approval of the Seven Mile Project as a final agency action under the APA. Utah Envtl. Cong. v. Bosworth, 372 F.3d 1219, 1223 n. 3 (10th Cir.2004) (“UEC I”); Colo. Farm Bureau Fed’n v. U.S. Forest Serv., 220 F.3d 1171, 1173 (10th Cir.2000). We consider the district court’s decision de novo. Am. Wildlands v. Browner, 260 F.3d 1192, 1196 (10th Cir.2001)." }, { "docid": "5027171", "title": "", "text": "the disputed Forest Service decision”); see also Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 800 n. 3 (9th Cir.2005) (holding the 1982 regulations “applicable here because they were in effect when the plan revisions challenged in this lawsuit were prepared”); Forest Watch v. U.S. Forest Serv., 410 F.3d 115, 118 (2d Cir.2005) (holding the “relevant date for the purpose of determining which rule applies is the date the final agency decision was made”). Here, the Record of Decision was dated March 27, 2003. Therefore, we agree with the Forest Service that the 2000 transition rule was applicable to the Griffin Springs Project. We next consider how to review the Forest Service’s March 27, 2003 Record of Decision when the agency did not consider or mention the Project’s compliance under the 2000 transition rule. The Second Circuit recently resolved this issue. See Forest Watch, 410 F.3d at 118-19. The court, relying on Bosworth, 372 F.3d at 1221 n. 1, determined that the 2000 transition rule applied to an environmental assessment issued in 2002. There, as here, the Forest Service nowhere considered or mentioned [the 2000 transition rule’s “best available science”] standard during the administrative process. Instead, the Forest Service reviewed the ... Project for compliance only with the 1982 Rules and the [Forest] Plan.... The exclusive application of the 1982 Rules and the failure to consider or mention the “best available science” standard amounted to conduct that is arbitrary and capricious. Forest Watch, 410 F.3d at 119. The court remanded the case to the district court with instructions to enter an order vacating the Forest Service’s approval of the project. Here, at oral argument, the Forest Service acknowledged that it made no mention of the 2000 transition rule’s applicability until this court issued its 2004 decision in Utah Environmental Congress. At that point in time, the Forest Service argued before the district court that the 2000 transition rule applied. The Forest Service points to nothing in the record regarding the district court’s resolution of this issue. At oral argument, the Forest Service maintained that the district court’s" }, { "docid": "16567662", "title": "", "text": "merely require “the responsible official [to] consider the best available science in implementing” a forest plan. 36 C.F.R. § 219.35(a), (d) (2001); 65 Fed.Reg. 67,514, 67,579 (Nov. 9, 2000). See generally Utah Envtl. Cong. v. Bosworth, 439 F.3d 1184, 1190 (10th Cir.2006) (“UEC II”) (quoting Forest Watch v. U.S. Forest Serv., 410 F.3d 115, 117 (2d Cir.2005), for the proposition that “the standards of the 1982 Rules and the 2000 Transitional Rule are — at least — distinct....”). 1. Implementation of the 2000 Transition Provisions We begin with UEC’s first argument: the 2000 transition provisions, although implemented in November 2000, are nonetheless inapplicable to the Seven Mile Project. To be sure, courts have expressed considerable confusion in applying the 2000 transition provisions. See 69 Fed.Reg. 58,-055, 58,055 (Sept. 29, 2004). They have reached varying conclusions regarding the applicability of the provisions to projects approved during the transition period. See, e.g., UEC II, 439 F.3d at 1189-90, 1195 (applying the 1982 rules because the Forest Service conceded their applicability; the court noted it did not resolve the question of the 2000 transition provisions’ applicability); Forest Watch, 410 F.3d at 118 (holding that the “plain language of the 2000 Transitional Rule” requires that “projects ‘implemented’ during the transition period must comply with the best available science standard”); Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 800 n. 3 (9th Cir.2005) (holding that the applicable NFMA planning regulations are those in effect at the time “the plan revisions challenged in this lawsuit were prepared”); Defenders of Wildlife v. Jo-hanns, 2005 WL 2620564, at *7 (N.D.Cal. Oct.14, 2005) (unpublished opinion) (applying Natural Resources to conclude that the “2004 Interpretative Rule may continue to be applied in cases where the challenged action was taken during the 2004 Interpretative Rule’s effective period”); Clinch Coal. v. Damon, 316 F.Supp.2d 364, 381 (W.D.Va.2004) (suggesting the 1982 planning rule would apply to a 2001 decision); Shawnee Trail Conservancy v. Nicholas, 343 F.Supp.2d 687, 707 (S.D.Ill. 2004) (noting that “[o]n November 9, 2000, the Department of Agriculture made wholesale changes to the relevant regulations, making prior citations" }, { "docid": "16567669", "title": "", "text": "the Seven Mile Project occurred in October 2004. As the interpretative -rule clarifies, “[T]he provisions of the 1982 planning rule may continue to be used only for plan amendments and revisions upon election of the responsible official. Appropriate plan amendments and projects proposed during the transition period should be developed considering the best available science.... ” 69 Fed.Reg. 58,055, 58,056 (Sept. 29, 2004) (emphasis added); see 70 Fed.Reg. 1023, 1024 (Jan. 5, 2005) (noting that the 2002 interim rule allowed “Forest Service managers to elect to continue preparing plan amendments and revisions under the 1982 planning rule”) (emphasis added). While our court may not be bound by the interpretative rule, certainly the agency itself is. In this respect, then, beginning on September 29, 2004, the date the interpretative rule was issued, the Forest Service was obligated to consider the best available science, and not the 1982 rules, in its implementation of the Seven Mile Project. In other words, the section of the 1982 rules which imposed an obligation on the Forest Service to monitor management indicator species over the life of a project, see UEC I, 372 F.3d at 1225, simply could not have any effect as to those project-level actions taken after the interpretative rule was issued. 2. Effect of the Fishlake Forest Plan Finally, UEC argues that the Fishlake Forest Plan incorporated the 1982 regulations as its governing provision, as evidenced by the Forest Plan’s detailed species monitoring requirements. The 1982 regulations, UEC argues, must therefore be followed even if they have been subsequently repealed or modified. We disagree. No party disputes that the Forest Plan envisions a species monitoring program for the Fishlake National Forest. It identifies, for example, several management indicator species and states in its “Implementation” chapter that the Forest Service will use “Population Trends” for management indicator species monitoring. However, the Forest Plan does not explicitly require that the Forest Service comply with the monitoring requirements of the 1982 rules. Nor can such an obligation be reasonably implied.' According to the Fishlake Forest Plan, it was “developed under implementing regulations of ... Title 36," }, { "docid": "16567663", "title": "", "text": "the question of the 2000 transition provisions’ applicability); Forest Watch, 410 F.3d at 118 (holding that the “plain language of the 2000 Transitional Rule” requires that “projects ‘implemented’ during the transition period must comply with the best available science standard”); Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 800 n. 3 (9th Cir.2005) (holding that the applicable NFMA planning regulations are those in effect at the time “the plan revisions challenged in this lawsuit were prepared”); Defenders of Wildlife v. Jo-hanns, 2005 WL 2620564, at *7 (N.D.Cal. Oct.14, 2005) (unpublished opinion) (applying Natural Resources to conclude that the “2004 Interpretative Rule may continue to be applied in cases where the challenged action was taken during the 2004 Interpretative Rule’s effective period”); Clinch Coal. v. Damon, 316 F.Supp.2d 364, 381 (W.D.Va.2004) (suggesting the 1982 planning rule would apply to a 2001 decision); Shawnee Trail Conservancy v. Nicholas, 343 F.Supp.2d 687, 707 (S.D.Ill. 2004) (noting that “[o]n November 9, 2000, the Department of Agriculture made wholesale changes to the relevant regulations, making prior citations obsolete”). In an attempt to address this confusion, the Forest Service issued an interpretative rule on September 29, 2004. Introducing the rule, the Forest Service explained: [I]t is clear that site-specific decisions entered into during the transition period are not to comply with the substantive provisions of the 2000 planning rule. This interpretative rule clarifies that until a new final rule is promulgated, the transition provisions of the 2000 planning rule, as amended by the May 2002 interim final rule remain in effect.... 69 Fed.Reg. 58,055, 58,056 (Sept. 29, 2004). The interpretative provision emphasized that “responsible officials consider the best available science in implementing national forest land management plans and, as appropriate, plan amendments.” Id. As to the continuing vitality of the 1982 provisions: [T]he 1982 planning rule may continue to be used only for plan amendments and revisions upon election of the responsible official. Appropriate plan amendments and projects proposed during the transition period should be developed considering the best available science in accordance with § 219.35 paragraph (a). Id. As we explained in" }, { "docid": "14103251", "title": "", "text": "forest plans that pre-dated the 2000 planning rules. See Utah Envtl. Cong. v. Troyer, 479 F.3d 1269, 1281 n. 4 (10th Cir.2007) [hereinafter UEC JF], Projects implementing forest plans that were adopted, revised, or amended after enactment of the 2000 planning rules, were to be governed by the standard adopted in the forest plan itself. Id. at 1281-82. . A biotic condition index is a measurement of water quality in streams or creeks. . If the proposed action will not significantly affect the quality of the human environment, then the NEPA directs the agency to prepare either a less detailed “environmental assessment,” or in the case of a proposed action that has been predetermined not to “individually or cumulatively have a significant effect on the human environment,” a “categorical exclusion.” See UEC IV, 479 F.3d at 1274. . Although the Forest Service attempted to amend the Forest Plan in 2004 to reduce the number of indicator species, that amendment was successfully challenged by UEC and rejected by the district court. See Richmond, 2006 WL 325375, at *8. Thus, the \"current plan” in place when the Trout Slope West project was approved was the 1986 version. . UEC insists that the forest plan’s reference to § 219.27 necessarily incorporates § 219.19 because § 219.27 \"does reference, explicitly cite and incorporate direction from § 219.19.” Aplt. Rep. Br. at 26 (citing Utah Envtl. Cong. v. Bosworth, 372 F.3d 1219, 1225 (10th Cir.2004) [hereinafter UEC I ]). UEC I, however, considered § 219.27 and § 219.19 in the context of whether § 219.19 applies to site-specific project planning, not whether reference to either section in a Forest Plan incorporates the 1982 monitoring requirements. See 372 F.3d at 1225. . The Forest Service conceded at oral argument that it must follow the forest plan and suggested that the plan did not conflict with the regulatory requirement to consider the \"best available science.” . In his concurrence and dissent in UEC IV, Judge McConnell notes that there is \"no precedent justifying reversal of significant agency action, affirmed by the district court, on the basis of" }, { "docid": "14103224", "title": "", "text": "in a forest plan. See Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 737 (10th Cir.2006) [hereinafter UEC III ]. Because the Forest Service must account for a variety of interests, each forest plan contemplates that the forest will be used for multiple purposes, including “outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.” Id. (citing 16 U.S.C. § 1604(e)(1)). Project planning refers to the Forest Service’s approval or disapproval of specific projects that implement (and consequently must comply with) the forest plan. Id. (citing 16 U.S.C. § 1604®). The Secretary of Agriculture has promulgated a number of regulations that set forth the procedures for planning under the NFMA. The first set of regulations relevant to this case was implemented in 1982 (36 C.F.R. Part 219). See 47 Fed. Reg. 43026-01 (Sept. 20, 1982), and included provisions directing the Forest Service, as part of its planning process, to identify and monitor management indicator species. The regulations required the Forest Service to collect population trend data for management indicator species. 36 C.F.R. §§ 219.19, 27 (1983). They also directed that “[f]ish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species.... ” Id. § 219.19. The 1982 regulations were superceded in November 2000 with new, substantially revised regulations. See 65 Fed.Reg. 67,514 (Nov. 9, 2000), codified at 36 C.F.R. Part 219 (2001). The 2000 regulations included several transition provisions specifying when the substantive planning provisions of the new regulations would become effective. Those transition provisions also set transition planning standards to govern forest plan amendments and site-specific project decisions during the transition period. UEC III, 443 F.3d at 746. For forest plan revisions and amendments adopted during the transition period, agency officials could elect to use the substantive planning standards of either the 1982 regulations or the 2000 regulations. See 36 C.F.R. § 219.35(b) (2001). For site-specific project decisions made during the transition period, however, the transition rules directed that agency officials “consider the best available science in implementing and, if appropriate, amending the current plan.” Id. § 219.35(a), (d). The transition" }, { "docid": "5027168", "title": "", "text": "the Forest Service’s motion to dismiss the NEPA claim. C. The National Forest Management Act claim Ecology Center’s more substantive concerns emanate from the National Forest Management Act. Ecology Center identifies a variety of shortcomings in the Record of Decision, and concludes that it failed to comply with the Dixie National Forest Plan. In particular, Ecology Center notes the Forest Service’s failure to maintain the Forest Plan’s recommended requirements for the northern goshawk’s habitat. In addition, according to Ecology Center, the Record of Decision makes no reference to the annual monitoring requirements for the northern goshawk, as required by the Forest Plan. Finally, the Forest Service has not explained why it will not follow the Conservation Strategy’s preferred recommendation to thin the understory trees. Aplts’ App. at A-58. Although the arguments raised by Ecology Center raise concerns, for the reasons explained below, we need not reach them in this opinion. 1. The 2000 Transitional Regulations Apply Forest plans may require particular standards to be followed regardless of later changes in the regulations. But this is not the case here. The Forest Plan “does not explicitly reference or adopt § 219.19 of the 1982 rules, concerning the selection and monitoring of management indicator species.” Utah Envt’l Cong. v. Bosworth, 443 F.3d 732, 748 (10th Cir.2006). Therefore, we cannot read the Forest Plan to adopt the 1982 rules. We thus must determine the standards under the appropriate regulation or transition rule. The 1982 forest planning regulations at 36 C.F.R. Part 219 were superseded in November 2000, when new regulations were promulgated. 65 Fed.Reg. 67,568 (Nov. 9, 2000). Under the transition provision of the 2000 regulations, the Forest Service was required to consider the “best available science” when implementing site-specific projects within a forest plan. 36 C.F.R. § 219.35(a) (2001). The Griffin Springs Project is a site-specific implementation of the Dixie National Forest Plan. See Utah Envt’l Cong. v. Bosworth, 372 F.3d 1219, 1221 (10th Cir.2004) (noting that a Forest Service project must be consistent with the applicable Forest Plan). A 2004 Department of Agriculture interpretive rule explains that, during the transition period" }, { "docid": "5027169", "title": "", "text": "not the case here. The Forest Plan “does not explicitly reference or adopt § 219.19 of the 1982 rules, concerning the selection and monitoring of management indicator species.” Utah Envt’l Cong. v. Bosworth, 443 F.3d 732, 748 (10th Cir.2006). Therefore, we cannot read the Forest Plan to adopt the 1982 rules. We thus must determine the standards under the appropriate regulation or transition rule. The 1982 forest planning regulations at 36 C.F.R. Part 219 were superseded in November 2000, when new regulations were promulgated. 65 Fed.Reg. 67,568 (Nov. 9, 2000). Under the transition provision of the 2000 regulations, the Forest Service was required to consider the “best available science” when implementing site-specific projects within a forest plan. 36 C.F.R. § 219.35(a) (2001). The Griffin Springs Project is a site-specific implementation of the Dixie National Forest Plan. See Utah Envt’l Cong. v. Bosworth, 372 F.3d 1219, 1221 (10th Cir.2004) (noting that a Forest Service project must be consistent with the applicable Forest Plan). A 2004 Department of Agriculture interpretive rule explains that, during the transition period from November 2000 until promulgation of a final rule (in January 2005), only the transition provision of the 2000 regulations applied. 69 Fed.Reg. 58,-055, 58,057 (Sept. 29, 2004). Thus, neither the remainder of the 2000 planning regulations nor any of the 1982 regulations were binding on site-specific decisions during this period. Id. (“The 1982 rule is not in effect.... Projects implementing land management plans must comply with the transition provisions of Section 219.35, but not any other provision of the 2000 planning rule.”). The preamble to the transition rule states that “projects proposed during the transition period should be developed considering the best available science.” Id. at 58,056. The preamble also advises that “site-specific decisions entered into during the transition period are not to comply with the substantive provision of the 2000 planning rule.” Id. Given these guidelines, we have determined that the relevant date to consider is the date the final agency decision on the Project was made. Bosworth, 372 F.3d at 1221 n. 1 (applying “[t]he regulations in effect at the time of" }, { "docid": "14103225", "title": "", "text": "(1983). They also directed that “[f]ish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species.... ” Id. § 219.19. The 1982 regulations were superceded in November 2000 with new, substantially revised regulations. See 65 Fed.Reg. 67,514 (Nov. 9, 2000), codified at 36 C.F.R. Part 219 (2001). The 2000 regulations included several transition provisions specifying when the substantive planning provisions of the new regulations would become effective. Those transition provisions also set transition planning standards to govern forest plan amendments and site-specific project decisions during the transition period. UEC III, 443 F.3d at 746. For forest plan revisions and amendments adopted during the transition period, agency officials could elect to use the substantive planning standards of either the 1982 regulations or the 2000 regulations. See 36 C.F.R. § 219.35(b) (2001). For site-specific project decisions made during the transition period, however, the transition rules directed that agency officials “consider the best available science in implementing and, if appropriate, amending the current plan.” Id. § 219.35(a), (d). The transition period for site-specific project decisions was set to expire on November 9, 2003, bringing other substantive provisions of the 2000 regulations into effect. See id. § 219.35(d). However, that transition period was extended for site-specific projects by an Interim Final Rule issued on September 10, 2003. 68 Fed. Reg. 53294, 53294-96 (2003). That Interim Final Rule extended the transition period for site-specific projects until January 5, 2005 when the Department of Agriculture replaced the 2000 regulations with a new final rule. Id. at 53295; see also 70 Fed.Reg. 1022, 1022-23 (Jan. 5, 2005). Thus, site-specific project decisions made from November 9, 2000 to January 5, 2005, that implemented pre-November 9, 2000 forest plans, were to be made only under the “best available science” standard. See 69 Fed.Reg. 58055, 58056 (Sept. 29, 2004). “[N]either the remainder of the 2000 planning regulations nor any of the 1982 regulations were binding on site-specific decisions during this period.” Ecology Ctr., Inc. v. U.S. Forest Serv., 451 F.3d 1183, 1191 (10th Cir.2006). B. The Ashley National Forest Plan The forest" }, { "docid": "5563003", "title": "", "text": "transition provision \"requires population monitoring or population surveys for the [MIS]” but gives the Responsible Official discretion to conduct \"[s]ite-specific monitoring or surveying of a proposed project.” 36 C.F.R. § 219.14(f) (2005); see also 70 Fed. Reg. at 1052 (\"clarifying] that MIS monitoring [under § 219.14] is appropriate at the times and places appropriate to the specific species, and is not required within individual project or activity areas”). We do not address whether the agency should apply the 1982 rule or the new transition provision during further proceedings. WHITE, District Judge. I respectfully offer this concurring opinion to highlight the impact of the intervening circuit precedent on the district court’s decision. Admittedly, the opinion rendered today follows logically from the now binding holding in UEC I that § 219.19 applies to project level activities in addition to the development, adoption and revision of the forest plan itself. The district court here would no doubt have ruled differently if it could have divined that project level management activities must strictly adhere to § 219.19 procedures. Such a divination, however, was not possible. As the opinion in UEC I implicitly concedes, its holding was not compelled by the actual language of the regulation. Nowhere in § 219.19 does the term “project” appear. The explicit language of that section mentions only the “planning area.” Indeed, UEC I mentions that even the plaintiff in that case conceded that “ § 219.19 applies to the development of forest management plans as opposed to specific project level actions[J” Utah Environmental Congress v. Bosworth, 372 F.3d 1219, 1224 (10th Cir.2004). UEC I’s analysis also mentions: (1) that NFMA “requires resource management activities be consistent with the forest plan,” Id., at 1224-25. (emphasis supplied); and, (2) that § 219.27 “contemplates the application of § 219.19 to project level as well as plan level management actions.” Id., at 1225 (emphasis supplied). These two factors formed the foundation for UEC I’s final conclusion that the regulations as a whole “anticipate” application of § 219.19 to project level as well as plan level management actions. Thus, according to UEC I, the" }, { "docid": "5562979", "title": "", "text": "Cir.2004) (“UEC I ”). While we now have the benefit of the Department’s post hoc explanation of the applicable regulations since we issued UEC I, interpretative rules “do not have the force and effect of law and are not accorded that weight in the adjudicatory process.” Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 99, 115 S.Ct. 1232, 131 L.Ed.2d 106 (1995). Because we review the Forest Service’s authorization for an abuse of discretion, it is logical to review that discretion based on the 1982 rule that was, according to UEC I, in place when the discretion was authorized. But see Forest Watch v. United States Forest Serv., 410 F.3d 115, 118 (2d Cir.2005) (citing UEC I for the proposition “that the relevant date for the purpose of determining which rule applies is the date the final agency decision was made,” while concluding that the 2000 transitional provisions govern an August 2002 project decision, despite the Forest Service’s application of the 1982 rule to the project’s approval). Third, the Forest Plan identifies several MIS and specifies in its “Implementation” chapter that the Forest Service use “Population Trends” for MIS monitoring. 1 AR 000157 (Forest Plan at 11-29 to 11-30, V-6); UEC I, 372 F.3d at 1232-33 (Baldock, J., concurring) (finding it “unnecessary to delve into the arduous task of interpreting [the 1982 rule]” because “[t]he' Fishlake Forest Plan requires the collection of quantitative data to fulfill its MIS monitoring requirements”). Projects must comply with the Forest Plan, see 16 U.S.C. § 1604(i), and the Forest Plan’s diversity provisions reflect the 1982 rule. Thus, we have multiple grounds to apply the 1982 rule and its attendant reliance on MIS analysis to our review of the Project’s authorization. Code of Federal Regulations citations (unless otherwise noted) refer to the 1999 edition of Part 219, the last published edition before the publication of the 2000 amendments. IV. ANALYSIS UEC claims that the Forest Service acted arbitrarily, capriciously, and contrary to law by (1) failing to select and monitor Management Indicator Species and (2) failing to consider a reasonable range of project alternatives. A." }, { "docid": "5027170", "title": "", "text": "from November 2000 until promulgation of a final rule (in January 2005), only the transition provision of the 2000 regulations applied. 69 Fed.Reg. 58,-055, 58,057 (Sept. 29, 2004). Thus, neither the remainder of the 2000 planning regulations nor any of the 1982 regulations were binding on site-specific decisions during this period. Id. (“The 1982 rule is not in effect.... Projects implementing land management plans must comply with the transition provisions of Section 219.35, but not any other provision of the 2000 planning rule.”). The preamble to the transition rule states that “projects proposed during the transition period should be developed considering the best available science.” Id. at 58,056. The preamble also advises that “site-specific decisions entered into during the transition period are not to comply with the substantive provision of the 2000 planning rule.” Id. Given these guidelines, we have determined that the relevant date to consider is the date the final agency decision on the Project was made. Bosworth, 372 F.3d at 1221 n. 1 (applying “[t]he regulations in effect at the time of the disputed Forest Service decision”); see also Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 800 n. 3 (9th Cir.2005) (holding the 1982 regulations “applicable here because they were in effect when the plan revisions challenged in this lawsuit were prepared”); Forest Watch v. U.S. Forest Serv., 410 F.3d 115, 118 (2d Cir.2005) (holding the “relevant date for the purpose of determining which rule applies is the date the final agency decision was made”). Here, the Record of Decision was dated March 27, 2003. Therefore, we agree with the Forest Service that the 2000 transition rule was applicable to the Griffin Springs Project. We next consider how to review the Forest Service’s March 27, 2003 Record of Decision when the agency did not consider or mention the Project’s compliance under the 2000 transition rule. The Second Circuit recently resolved this issue. See Forest Watch, 410 F.3d at 118-19. The court, relying on Bosworth, 372 F.3d at 1221 n. 1, determined that the 2000 transition rule applied to an environmental assessment issued in" }, { "docid": "5027181", "title": "", "text": "until November 9, 2003. See Bosworth, 443 F.3d at 737; 36 C.F.R. § 219.35(d) (2001); 65 Fed.Reg. at 67,579. “During the transition period,” the Forest Service was required to \"consider the best available science in implementing” a forest plan. 36 C.F.R. § 219.35(a) (2001). In 2001, the new presidential administration moved quickly to review the new rules and in May 2001 suspended their application until May 2002. See 66 Fed.Reg. 27,552 (May 17, 2001). On May 20, 2002, the Department of Agriculture again extended the transition date of the 2000 planning regulations. 67 Fed.Reg. 35,431 (May 20, 2002). On December 6, 2002, the Forest Service proposed revisions to the 2000 regulations. 67 Fed.Reg. '72,770 (Dec. 6, 2002). On September 10, 2003, the Forest Service published another \"interim final rule,” extending the transition date of the 2000 regulations \"until the Department promulgates the final planning regulations published as proposed on December 6, 2002.” 68 Fed.Reg. 53,294, 53,297 (Sept. 10, 2003). Apparently, and unsurprisingly, this series of publications and promulgations created considerable uncertainty regarding the effect of the 2000 planning regulations, particularly the application of the \"best available science” standard during the transition period. As a result, on September 29, 2004, the Forest Service issued an \"interpretative rule” stating that the agency should use the \"best available science” standard during the transition period from November 2000 until promulgation of a final rule. 69 Fed.Reg. 58,055, 58,056 (Sept. 29, 2004). The Forest Service subsequently published its final planning regulations. 70 Fed.Reg. 1022 (Jan. 5, 2005). It is not surprising that \"courts have expressed considerable confusion in applying the 2000 transition provisions.” Bosworth, 443 F.3d at 745. . Ecology Center failed to provide the Record of Decision, which is a required portion of the record because it is the decision “from which the appeal is taken.” 10th Cir R. 10.3(C)(5). The Forest Service attempted to rectify this deficiency when it supplied an excerpt of the Record of Decision in its Supplemental Appendix and Supplemental Excerpts. See 10th Cir. R. 30.2(A) (“An appellee who believes that the appellant's appendix omits items that should be included" }, { "docid": "14103234", "title": "", "text": "of mitigation measures designed to reduce negative effects the project would otherwise have on CRCT populations. Without pre-deci-sional data on CRCT populations, the Forest Service could not have fully evaluated whether the project’s mitigation measures were adequate. Nor could it evaluate the efficacy of those mitigation measures in the future. Taken together, these facts suggest that adequate monitoring data would be necessary to evaluate the project’s effect on the environment as part of the initial administrative approval. As previously discussed, the 1982 regulations were entirely superceded by the 2000 transition regulations with respect to site-specific project decisions implementing pre-November 9, 2000 forest plans. The forest plan in this case was adopted in 1986. The project ROD was issued on July 1, 2004, during the transition period. Accordingly, the decision to approve the project was governed by the “best available science” standard, not the specific monitoring requirements of the 1982 regulations. See UEC IV, 479 F.3d at 1281-82. UEC argues that, despite the transitional “best available science” standard, the Forest Service was bound to follow the 1982 monitoring requirements because those requirements were incorporated into the 1986 forest plan and spelled out in the Forest Service Manual. To be sure, the Forest Service is required to comply with existing forest plans, see 16 U.S.C. § 1604(i), which here includes the requirement to monitor certain management indicator species, including the CRCT. Moreover, the Forest Service Manual is useful in identifying the Forest Service’s standard policies and practices. However, the 1986 forest plan did not expressly reference the 1982 regulations (then codified at § 219.19) in adopting requirements to monitor management indicator species designated by the plan. Furthermore, the forest plan expressly stated that “the administration and management of the Forest will be guided by existing and future laws, regulations, policies and standards and guidelines.” II ApltApp. at 548 (emphasis added). We made clear in UEC III that such language in a forest plan does not incorporate the 1982 monitoring regulations. See 443 F.3d at 748 and n. 12. Therefore, the Forest Service is obligated to apply the new regulations, see Ecology Ctr.," }, { "docid": "5562978", "title": "", "text": "and we review Forest Service obligations under the 1982 rule instead. First, the Forest Service stated at oral argument that it “elected” to apply the 1982 rule when it approved the Project. See 36 C.F.R. § 219.35(b) (2001); see also Aple’s Br. at 8 n. 2 (“The Forest Service promulgated the [] Forest Plan and decided to undertake the Thousand Lakes project under the 1982 planning rule.”) (emphasis added). While the Forest Service now contends that it was not required to comply with the 1982 rule, it nonetheless exercised its discretion to apply the 1982 rule when issuing its Decision Notice and Final Decision. The agency’s choice of methodology is entitled to deference. See Custer County Action Ass’n, 256 F.3d at 1036. Second, in another case involving a Fishlake National Forest project, we treated the 1982 rule, rather than the transition provision of § 219.35(a), as “[t]he regulations in effect at the time of the disputed Forest Service decisions” made in December 2000. Utah Envtl. Cong. v. Bosivorth, 372 F.3d 1219, 1221 n. 1 (10th Cir.2004) (“UEC I ”). While we now have the benefit of the Department’s post hoc explanation of the applicable regulations since we issued UEC I, interpretative rules “do not have the force and effect of law and are not accorded that weight in the adjudicatory process.” Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 99, 115 S.Ct. 1232, 131 L.Ed.2d 106 (1995). Because we review the Forest Service’s authorization for an abuse of discretion, it is logical to review that discretion based on the 1982 rule that was, according to UEC I, in place when the discretion was authorized. But see Forest Watch v. United States Forest Serv., 410 F.3d 115, 118 (2d Cir.2005) (citing UEC I for the proposition “that the relevant date for the purpose of determining which rule applies is the date the final agency decision was made,” while concluding that the 2000 transitional provisions govern an August 2002 project decision, despite the Forest Service’s application of the 1982 rule to the project’s approval). Third, the Forest Plan identifies several MIS and" }, { "docid": "16567661", "title": "", "text": "provisions were not effective at the time of the Project’s implementation; and (2) even if the transition provisions were in effect, the Fishlake Forest Plan incorporates the 1982 regulations for purposes of projects considered in the Fishlake National Forest. The Forest Service disputes both arguments, contending the 2000 transition provisions were effective for purposes of the Project and that the Forest Plan’s species monitoring program is independent of the 1982 rules. Deciding whether the 1982 regulations apply to the Project, either of their own accord or by virtue of the Forest Plan, is important because the 1982 regulations and the 2000 transition provisions contain key differences governing species monitoring. The 1982 rules, for example, require the Forest Service to monitor the “[p]opu-lation trends of the management indicator species” and determine “relationships to habitat changes.” 36 C.F.R. § 219.19(a)(6). And we have held that these obligations apply to “project level as well as plan level management actions.” UEC I, 372 F.3d at 1225. Conversely, the 2000 transition provisions contain no such explicit language governing monitoring but merely require “the responsible official [to] consider the best available science in implementing” a forest plan. 36 C.F.R. § 219.35(a), (d) (2001); 65 Fed.Reg. 67,514, 67,579 (Nov. 9, 2000). See generally Utah Envtl. Cong. v. Bosworth, 439 F.3d 1184, 1190 (10th Cir.2006) (“UEC II”) (quoting Forest Watch v. U.S. Forest Serv., 410 F.3d 115, 117 (2d Cir.2005), for the proposition that “the standards of the 1982 Rules and the 2000 Transitional Rule are — at least — distinct....”). 1. Implementation of the 2000 Transition Provisions We begin with UEC’s first argument: the 2000 transition provisions, although implemented in November 2000, are nonetheless inapplicable to the Seven Mile Project. To be sure, courts have expressed considerable confusion in applying the 2000 transition provisions. See 69 Fed.Reg. 58,-055, 58,055 (Sept. 29, 2004). They have reached varying conclusions regarding the applicability of the provisions to projects approved during the transition period. See, e.g., UEC II, 439 F.3d at 1189-90, 1195 (applying the 1982 rules because the Forest Service conceded their applicability; the court noted it did not resolve" } ]

[ { "docid": "22607239", "title": "", "text": "by cited evidence, or unconvincing.” Ibid. The Court of Appeals further determined that plaintiffs had carried their burden of establishing a “possibility” of irreparable injury. Even under the Navy’s own figures, the court concluded, the training exercises would cause 564 physical injuries to marine mammals, as well as 170,000 disturb anees of marine mammals’ behavior. Id., at 696. Lastly, the Court of Appeals held that the balance of hardships and consideration of the public interest weighed in favor of the plaintiffs. The court emphasized that the negative impact on the Navy’s training exercises was “speculative,” since the Navy has never before operated under the procedures required by the District Court. Id., at 698-699. In particular, the court determined that: (1) The 2,200-yard shutdown zone imposed by the District Court was unlikely to affect the Navy’s operations, because the Navy often shuts down its MFA sonar systems during the course of training exercises; and (2) the power-down requirement during significant surface ducting conditions was not unreasonable because such conditions are rare, and the Navy has previously certified strike groups that had not trained under such conditions. Id., at 699-702. The Ninth Circuit concluded that the District Court’s preliminary injunction struck a proper balance between the competing interests at stake. We granted certiorari, 554 U. S. 916 (2008), and now reverse and vacate the injunction. Ill A A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. See Munaf v. Geren, 553 U. S. 674, 689-690 (2008); Amoco Production Co. v. Gambell, 480 U. S. 531, 542 (1987); Weinberger v. Romero-Barcelo, 456 U. S. 305, 311-312 (1982). The District Court and the Ninth Circuit concluded that plaintiffs have shown a likelihood of success on the merits of their NEPA claim. The Navy strongly disputes this determination, arguing that plaintiffs’ likelihood of success is low because the CEQ reasonably concluded that “emergency circumstances” justified" } ]

[ { "docid": "16979785", "title": "", "text": "of the YooHoo & Friends products by diluting their unique, distinctive nature and leading consumers erroneously to associate Yoo-Hoo & Friends with Ty rather than Aurora. Aurora asserts that Ty is trading on the goodwill Aurora has built through its development of innovative and unique designs. It contends that in addition to being the most important sales period for plush toy makers, the holiday season is when retailers test how well products fare in the marketplace; as a result, it asserts, orders for 2010 and beyond will be affected by decreased holiday sales. On November 17, 2009, Aurora commenced suit, alleging claims for copyright infringement, trade dress infringement, unfair competition, and false designation of origin under the Lanham Act, unfair competition under California Business & Professions Code §§ 17200 et seq., common law misappropriation, and common law unfair competition. Aurora seeks of preliminary and permanent injunctions, an award of Ty’s profits, actual damages, attorneys’ fees and costs, punitive damages, and interest. II. DISCUSSION A. Standard Governing Preliminary Injunctive Relief A “preliminary injunction is an extraordinary and drastic remedy.” Munaf v. Geren, 553 U.S. 674, 128 S.Ct. 2207, 2219, 171 L.Ed.2d 1 (2008). Thus, a district court should enter a preliminary injunction only “upon a clear showing that the plaintiff is entitled to such relief.” Win ter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 375, 172 L.Ed.2d 249 (2008). Such a showing requires that plaintiff establish it “is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the public interest.” Winter, 129 S.Ct. at 374. See Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir.2009) (“Under Winter, plaintiffs seeking a preliminary injunction must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction is in the public interest”). See" }, { "docid": "21773051", "title": "", "text": "is appropriate. A preliminary injunction is an extraordinary remedy; it “should be granted only in limited circumstances.” American Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The “failure to establish any element ... renders a preliminary injunction inappropriate.” Nutra-Sweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999). The movant bears the burden of showing that these four factors weigh in favor of granting the injunction. See Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 192 (3d Cir. 1990). While the movant must show that each of these factors weighs in favor of granting an injunction, an injunction might be appropriate where a movant makes a particularly strong case on some factors, but not others. Thus, “courts must balance the competing claims of injury and must consider the effect on each party of the granting, or withholding of the requested relief.” Reilly v. City of Harrisburg, 858 F.3d 173, 177-78 (3d Cir. 2017), as amended (June 26, 2017) (quoting Winter, 555 U.S. at 24, 129 S.Ct. 365). “[I]n a situation where factors of irreparable harm, interests of third parties and public considerations strongly favor the moving party, an injunction might be appropriate even though plaintiffs did not demonstrate as strong a likelihood of ultimate success as would be generally required.” Constructors Ass’n of W. Pa. v. Kreps, 573 F.2d 811, 815 (3d Cir. 1978). In addition, the court must weigh “[a]ll of [the four preliminary injunction] factors ... together in the final decision and the strength of the plaintiffs showing with respect to one may affect what will suffice with respect to another.” Marxe v. Jackson, 833" }, { "docid": "6324926", "title": "", "text": "any anticorruption interest. Because they cannot contribute the entire $5,200 after the primary, Plaintiffs assert, they are foreclosed from fully supporting the successful party candidate. Plaintiffs further argue a violation of equal protection, contending that they are treated differently than contributors to candidates who ran in uncontested primaries. Specifically, they assert that while contributors to candidates facing no significant primary opposition can effectively give $5,200 for the general election (because those candidates can use the $2,600 contributed before the primary towards the general election, as well as the $2,600 contributed after the primary), In contrast, Plaintiffs, who wish only to support candidates in the general election, are limited to a single contribution of $2,600. On these grounds, Plaintiffs have moved for a preliminary injunction to enjoin enforcement of the rule. II. LEGAL STANDARD A. Preliminary Injunction A district court may grant a preliminary injunction “to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). A'plaintiff seeking a preliminary injunction must establish that: (a) he is likely to succeed on the merits; (b) he is likely to suffer irreparable harm in the absence of preliminary relief; (c) the balance of equities tips in his favor; and (d) an injunction is in the public interest. Winter v. NRDC, Inc., 555 U.S. 7, 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The D.C. Circuit has further instructed that “the movant has the burden to show that all four factors ... weigh in favor of tlje injunction.” Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C.Cir.2009). Further, a preliminary injunction is “an extraordinary remedy that should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion.” Cobell v. Norton, 391 F.3d 251, 258 (D.C.Cir.2004); see also Abdullah v. Obama, 753 F.3d 193, 197 (D.C.Cir.2014) (“A preliminary injunction is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”) (internal citations omitted)." }, { "docid": "16979787", "title": "", "text": "also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138 (9th Cir.2009) (“To qualify for injunctive relief, the plaintiffs must establish that ‘the balance of equities tips in [their] favor,’ ” quoting Winter, 129 S.Ct. at 374); American Trucking Associations, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009) (“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits,” citing Winter, 129 S.Ct. at 374); Timbisha Shoshone Tribe v. Kennedy, 687 F.Supp.2d 1171, 1182 (E.D.Cal.2009) (“Pursuant to Winter, [pjlaintiffs must make a ‘clear showing’ that they are ‘likely to succeed on the merits,’ ” quoting Winter, 129 S.Ct. at 375-76). “[Preliminary injunctive relief is available only if plaintiffs ‘demonstrate that irreparable injury is likely in the absence of an injunction.’ ” Johnson v. Couturier, 572 F.3d 1067, 1081 (9th Cir.2009) (quoting Winter, 129 S.Ct. at 375). If the harm to plaintiff is merely monetary, it “will not usually support injunctive relief.” American Trucking, 559 F.3d at 1057. See also California Pharmacists Association v. Maxwell-Jolly, 568 F.3d 847, 851-52 (9th Cir.2009) (“Typically, monetary harm does not constitute irreparable harm.... Economic damages are not traditionally considered irreparable because the injury can later be remedied by a damage award” (emphasis original)). In addition, harm that is “merely speculative” will not support injunctive relief, “although a loss of goodwill and reputation can do so.” American Tracking, 559 F.3d at 1057. “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter, 129 S.Ct. at 376. “In each case, a court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Amoco Production Co. v. Village of Cambell, Alaska, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). “In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). “The public interest analysis for the issuance of a preliminary injunction requires [the" }, { "docid": "19601021", "title": "", "text": "ballot election system than it would be under the traditional polling-place system. Even before the VCA's enactment, California voters could opt to vote by mail on an individual basis. Id. at § 3003. Under the VCA, this option remains available to individual voters whose home county has not opted in to the all-mailed ballot election system. B. This Lawsuit At the end of February 2018, the appellants filed this lawsuit, alleging that the VCA violated the Fourteenth Amendment's Equal Protection Clause by restricting the fundamental right to vote on the basis of county of residence, without sufficient justification. The appellants also sought a preliminary injunction against enforcement of the VCA. The district court rejected the request for a preliminary injunction. While the district court thought that the appellants had \"raised serious questions on the merits,\" it concluded that they had not met their burden of showing that a preliminary injunction would be in the public interest. This timely appeal followed, and we granted the appellants' unopposed motion to expedite it. II. DISCUSSION A. Standard of Review Plaintiffs seeking a preliminary injunction must establish that: (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The Ninth Circuit weighs these factors on a sliding scale, such that where there are only \"serious questions going to the merits\"-that is, less than a \"likelihood of success\" on the merits-a preliminary injunction may still issue so long as \"the balance of hardships tips sharply in the plaintiff's favor\" and the other two factors are satisfied. Shell Offshore, Inc. v. Greenpeace, Inc. , 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1135 (9th Cir. 2011) ). When the preliminary relief sought would interfere with state voting procedures shortly before an election, a court considering" }, { "docid": "13321803", "title": "", "text": "support in infer- enees that may be drawn from the facts in the record. Hinkson, 585 F.3d at 1262. “We review findings of fact for clear error.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1286 (9th Cir. 2013). “[A]s long as the district court got the law right, it will not be reversed simply because the appellate court would have arrived at a different result if it had applied the law to the facts of the case.” Id. (quoting Thalheimer v. City of San Diego, 645 F.3d 1109, 1115 (9th Cir. 2011)). A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22, 129 S.Ct. 365. The standard to obtain such relief is accordingly stringent: “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20, 129 S.Ct. 365. A plaintiff must make a showing as to each of these elements, although in our circuit “if a plaintiff can only show that there are ‘serious questions going to the merits’ — a lesser showing than likelihood of success on the merits — then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiffs favor,’ and the other two Winter factors are satisfied.” Shell Offshore, 709 F.3d at 1291. “That is, ‘serious questions going to the merits’ and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” All for the Wild Rockies, 632 F.3d at 1135. When faced with a request to interfere with a state’s election laws “just weeks before an election,” federal courts are “required to weigh, in addition to" }, { "docid": "5057319", "title": "", "text": "on January 4, 2012. The Court ordered expedited briefing, and, on January 13, 2012, held an evidentiary hearing on the motion for preliminary relief. The plaintiffs raise claims arising under the First and Fourteenth Amendments to the Constitution. They attack Virginia’s rule that only people eligible to register to vote may circulate petitions for signatures to place a candidate on the ballot. The plaintiffs contend that the limitation on who may seek signatures restricts their rights of free speech and association, because fewer people can advocate them as candidates. The plaintiffs also challenge Virginia’s statute requiring statewide candidates to obtain 10,000 signatures, including 400 from each congressional district, to secure a place on the ballot. They claim the number of signatures is too burdensome and, therefore, unconstitutional. Finally, the plaintiffs argue that Virginia’s election procedures violate the Voting Rights Act. II. Law Governing Preliminary Injunctive Relief The requirements for preliminary injunctive relief are well established. Such relief is appropriate when the plaintiffs establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in the plaintiffs’ favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008); Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 346-47 (4th Cir.2009), vacated on other grounds, — U.S. -, 130 S.Ct. 2371, 176 L.Ed.2d 764 (2010). As the Fourth Circuit explained in Real Truth About Obama, Winter requires that the plaintiffs make a clear showing that they will likely succeed on the merits at trial. Real Truth About Obama, Inc., 575 F.3d at 346. The traditional purpose of a preliminary injunction is to prohibit an action. Preliminary injunctions are meant to “protect the status quo and to prevent irreparable harm during the pendency of a lawsuit ultimately to preserve the court’s ability to render a meaningful judgment on the merits.” In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir.2003). Mandatory" }, { "docid": "20508715", "title": "", "text": "in the absence of preliminary relief, relying in large part on Pollard’s testimony about the impact on the reputation of the Rowenta brand and on SEB’s goodwill. Finally, the District Court concluded that the balance of harms and the public interest favored granting the preliminary injunction. Notably, the preliminary injunction required Euro-Pro to place stickers over the claims on the Shark packaging and remove the hang tags from the steam irons. Euro-Pro filed this timely appeal on May 15, 2014. Euro-Pro filed motions to stay the preliminary injunction in the District Court and in this Court, but both motions were denied. II. The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have jurisdiction over the appeal from the order granting the preliminary injunction pursuant to 28 U.S.C. § 1292(a)(1). “We review an order granting a preliminary injunction for abuse of discretion, the factual findings for clear error, and the determinations of questions of law de novo.” Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 418 (3d Cir.2010) (internal quotation marks and citation omitted). We review the details of equitable relief for abuse of discretion. Anderson v. Davila, 125 F.3d 148, 159 (3d Cir.1997). III. “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Awarding preliminary relief, therefore, is only appropriate “upon a clear showing that the plaintiff is entitled to such relief.” Id. at 22, 129 S.Ct. 365. “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20, 129 S.Ct. 365. On appeal, Euro-Pro challenges the District Court’s conclusions on the first and second factors in the preliminary injunction test: first, that SEB established a likelihood of success on the merits; and second, that SEB showed a likelihood of irreparable harm without" }, { "docid": "16979786", "title": "", "text": "and drastic remedy.” Munaf v. Geren, 553 U.S. 674, 128 S.Ct. 2207, 2219, 171 L.Ed.2d 1 (2008). Thus, a district court should enter a preliminary injunction only “upon a clear showing that the plaintiff is entitled to such relief.” Win ter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 375, 172 L.Ed.2d 249 (2008). Such a showing requires that plaintiff establish it “is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the public interest.” Winter, 129 S.Ct. at 374. See Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir.2009) (“Under Winter, plaintiffs seeking a preliminary injunction must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction is in the public interest”). See also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138 (9th Cir.2009) (“To qualify for injunctive relief, the plaintiffs must establish that ‘the balance of equities tips in [their] favor,’ ” quoting Winter, 129 S.Ct. at 374); American Trucking Associations, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009) (“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits,” citing Winter, 129 S.Ct. at 374); Timbisha Shoshone Tribe v. Kennedy, 687 F.Supp.2d 1171, 1182 (E.D.Cal.2009) (“Pursuant to Winter, [pjlaintiffs must make a ‘clear showing’ that they are ‘likely to succeed on the merits,’ ” quoting Winter, 129 S.Ct. at 375-76). “[Preliminary injunctive relief is available only if plaintiffs ‘demonstrate that irreparable injury is likely in the absence of an injunction.’ ” Johnson v. Couturier, 572 F.3d 1067, 1081 (9th Cir.2009) (quoting Winter, 129 S.Ct. at 375). If the harm to plaintiff is merely monetary, it “will not usually support injunctive relief.” American Trucking, 559 F.3d at 1057. See also California Pharmacists Association v. Maxwell-Jolly, 568 F.3d" }, { "docid": "21109782", "title": "", "text": "2015. According to. BLM, any additional delay would seriously undermine the agency’s ability to complete the gather successfully. After an extremely expedited briefing schedule, the Court held an evidentiary hearing and heard oral argument on Plaintiffs’ motion on September 11, 2015. At the hearing, the Court received testimony from Linda Hanick and Plaintiff Barbara Flores — two wild-horse enthusiasts who have traveled to the White River Resource Area and observed past BLM gathers — as well as from Kent Walter, the Manager of BLM’s White River Field Office. II. Standard of Review A preliminary injunction is “an extraordinary remedy never awarded .as of right.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). In order to obtain a preliminary injunction to prevent BLM from conducting its planned roundup, Plaintiffs must establish that they are “likely to succeed on the merits, that [they are] likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the public interest.” Id. at 20, 129 S.Ct. 365. The D.C. Circuit has indicated that,' even after the Supreme Court’s decision in Winter, “[a] district court must balance the strength of a plaintiffs arguments in each of the four elements when deciding whether to grant a preliminary injunction.” Mills v. District of Columbia, 571 F.3d 1304, 1308 (D.C.Cir.2009). Nonetheless, “it is especially important for the movant to demonstrate a likelihood of success on the merits.” Nat’l Head Start Ass’n v. U.S. Dep’t of Health & Human Servs., 297 F.Supp.2d 242, 246 (D.D.C.2004) (citing Davenport v. Int'l Bhd. of Teamsters, 166 F.3d 356, 360, 366 (D.C.Cir.1999)). III. Analysis A. Likelihood of Success on the Merits Plaintiffs challenge the proposed gather in four main respects. First, they insist that the Wild Horses Act forbids BLM from designating all horses in the West Douglas HÁ as “excess animals.” Second, they contend that BLM acted arbitrarily and capriciously, in violation of the Administrative Procedure Act, by failing to obtain more-current population figures before rendering its “excess” determinations" }, { "docid": "8824506", "title": "", "text": "18, 2012, and admitted evidence without objection, most of which had previously been submitted as exhibits already entered on the court’s docket. We also heard live testimony from Nago, and considered extensive oral argument from the parties. We have considered the evidentiary record, and oral and written argument of counsel, and rule as follows. III. STANDARD OF REVIEW There are two types of preliminary injunctions — a prohibitory injunction “preserve[s] the status quo pending a determination of the action on the merits,” whereas a “mandatory injunction orders a responsible party to ‘take action.’ ” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir.2009) (citations and quotations omitted). “A mandatory injunction ‘goes well beyond simply maintaining the status quo [p]endente lite [and] is particularly disfavored.’ ” Id. (quoting Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir.1980)). The remedies Kostick seeks here include both types of preliminary injunction. A preliminary injunction “ ‘is an extraordinary remedy never awarded as of right.’ ” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the' merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20, 129 S.Ct. 365. A decisive showing as to all factors is not required: under the “sliding scale” or “serious questions” approach to preliminary injunctions, “the elements of the preliminary injunction test are balanced, so that a stronger showing of oné element may offset a weaker showing of another. For example, a stronger showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the merits.” Alliance for the Wild Rockies, 632 F.3d at 1131 (citing Clear Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir.2003)). However," }, { "docid": "10821727", "title": "", "text": "for the appeal. Garcia’s tort allegations — and claimed harm resulting from those torts, such as emotional distress — do not figure into our analysis. We begin with the basics. The district court’s order denying Garcia’s motion for a preliminary injunction is reviewed for abuse of discretion. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011). Because our review is deferential, “[w]e will not reverse the district court where it ‘got the law right,’ even if we ‘would have arrived at a different result,’ so long as the district court did not clearly err in its factual determinations.” Id. (internal citation omitted). The Supreme Court has emphasized that preliminary injunctions are an “extraordinary remedy never awarded as of right.” Winter v. NRDC, 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The district court correctly identified that Garcia must satisfy Winter’s four-factor test. “A plaintiff seeking a preliminary' injunction must show that: (1) she is likely to succeed on the merits, (2) she is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in her favor, and (4) an injunction is in the public interest.” Farris v. Seabrook, 677 F.3d 858, 864 (9th Cir.2012) (citing Winter, 555 U.S. at 20, 129 S.Ct. 365). The first factor under Winter is the most important — likely success on the merits. Aamer v. Obama, 742 F.3d 1023, 1038 (D.C.Cir.2014) (“We begin with the first and most important factor: whether petitioners have established a likelihood of success on the merits.”). Because it is a threshold inquiry, when “a plaintiff has failed to show the likelihood of success on the merits, we ‘need not consider the remaining three [Winter elements].’ ” Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris, 729 F.3d 937, 944 (9th Cir.2013) (quoting DISH Network Corp. v. F.C.C., 653 F.3d 771, 776-77 (9th Cir.2011)). Garcia’s burden here is doubly demanding: Because Garcia seeks a mandatory injunction, she must establish that the law and facts clearly favor her position, not simply that she is likely to" }, { "docid": "20589956", "title": "", "text": "October 1, 2014, see Hr’g, ECF No. 29, and subsequently granted Plaintiffs request for a TRO. See TRO, Oct. 2, 2014, ECF Nos. 35 (conf. version) & 36 (pub. version). This TRO, effective through midnight on October 16, 2014, enjoined Customs from imposing the heightened bond requirement on the subject entries, and required instead that the Plaintiff provide security to this Court in the amount of one million dollars ($1,000,-000.00), “to pay the costs or damages as may be incurred or suffered by the Defendant in the event of a finding that the Defendant has been wrongfully enjoined or restrained.” Id. at 2. DISCUSSION “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citation omitted). To obtain a preliminary injunction, Plaintiff must establish: “[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Id. at 20, 129 S.Ct. 365 (citations omitted). No one factor is dispositive, FMC Corp. v. United States, 3 F.3d 424, 427 (Fed.Cir.1993), but “[c]entral to the movant’s burden are the likelihood of success and irreparable harm factors.” Sofamor Danek Grp., Inc. v. DePuy-Motech, Inc., 74, F.3d 1216, 1219 (Fed.Cir.1996). The court evaluates a request for a preliminary injunction on a “sliding scale,” where “the more the balance of irreparable harm inclines in the plaintiffs favor, the smaller the likelihood of prevailing on the merits he need show in order to get the injunction.” Qingdao Taifa Grp. Co. v. United States, 581 F.3d 1375, 1378-79 (Fed.Cir.2009) (citing Kowalski v. Chi. Tribune Co., 854 F.2d 168, 170 (7th Cir.1988)). Because of this “sliding scale,” we begin our analysis with discussion of irreparable harm. I. Plaintiff Has Shown a Viable and Immediate Threat of Irreparable Harm. Plaintiff must establish that, in the absence of a preliminary injunction, he will suffer irreparable harm. Winter," }, { "docid": "2239416", "title": "", "text": "to plenary review. Id, III. Preliminary injunctive relief is an “extraordinary remedy, which should be granted only in limited circumstances.” Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d 578, 586 (3d Cir.2002) (quotation marks omitted). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20, 129 S.Ct. 365. The “failure to establish any element ... renders a preliminary injunction inappropriate.” NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir.1999). The movant bears the burden of showing that these four factors weigh in favor of granting the injunction. See Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 192 (3d Cir. 1990). Ferring takes issue with the District Court’s analysis of the irreparable harm prong in deciding its motion for a preliminary injunction. It argues that irreparable harm can and should be presumed in Lanham Act comparative false advertising cases, and that the District Court erred in declining to afford Ferring that presumption and in denying it a preliminary injunction. Watson responds that: (1) this Court has never recognized such a presumption; (2) even if such a presumption once existed, it no longer does in light of the Supreme Court’s decisions in eBay, 547 U.S. 388, 126 S.Ct. 1837, and Winter, 555 U.S. 7, 129 S.Ct. 365; and (3) without that presumption, Ferring failed to demonstrate a likelihood of irreparable harm. We address these contentions below. A. This Court has never held that a plaintiff seeking a preliminary injunction pursuant to a Lanham Act false advertising claim is entitled to a presumption of irreparable harm. However, prior to eBay, several of our sister courts had applied a presumption of irreparable harm upon a showing of likelihood of success on the merits where a plaintiff seeks a preliminary injunction in a comparative false advertising case. See, e.g.," }, { "docid": "21773050", "title": "", "text": "Commonwealth has satisfied the redressability requirement. Because the Commonwealth is asserting a procedural right under the APA to protect its interests, it “can assert that right without meeting all the normal standards for redressability and immediacy.” See Massachusetts, 549 U.S. at 517-18, 127 S.Ct. 1438. If, as here, the litigant is “vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.” Id. at 518, 127 S.Ct. 1438. Enjoining the Agencies’ New IFRs based on APA claims should prompt them to reconsider the propriety of the Religious and Moral Exemptions Rules, “which is all a plaintiff must show when asserting a procedural right.” Texas, 809 F.3d at 161. In sum, the Commonwealth has shown that it has standing to pursue injunctive relief through its APA claims based on an injury to its ñscs. III. Legal Standard As the Commonwealth has standing to pursue a preliminary injunction, the next step is to determine whether one is appropriate. A preliminary injunction is an extraordinary remedy; it “should be granted only in limited circumstances.” American Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The “failure to establish any element ... renders a preliminary injunction inappropriate.” Nutra-Sweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999). The movant bears the burden of showing that these four factors weigh in favor of granting the injunction. See Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 192 (3d Cir. 1990). While the movant must show that each of these factors weighs in favor" }, { "docid": "20508716", "title": "", "text": "and citation omitted). We review the details of equitable relief for abuse of discretion. Anderson v. Davila, 125 F.3d 148, 159 (3d Cir.1997). III. “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Awarding preliminary relief, therefore, is only appropriate “upon a clear showing that the plaintiff is entitled to such relief.” Id. at 22, 129 S.Ct. 365. “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20, 129 S.Ct. 365. On appeal, Euro-Pro challenges the District Court’s conclusions on the first and second factors in the preliminary injunction test: first, that SEB established a likelihood of success on the merits; and second, that SEB showed a likelihood of irreparable harm without preliminary relief. Euro-Pro also contends that the Dis trict Court’s injunction violates the First Amendment and is overbroad. A. SEB brought its false advertising claims pursuant to the Lanham Act and Pennsylvania common law. Section 43(a) of the Lanham Act provides in pertinent part: (1) Any person who, on or in connection ■ with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which— (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. 15 U.S.C. § 1125(a)(1)(B). To establish a claim for false advertising, a Lanham Act plaintiff must prove five elements: 1) that the defendant has made false" }, { "docid": "17356531", "title": "", "text": "in North Carolina go to the polls in a statewide general election. Nothing in the record suggests that any dilatoriness by either the parties or the court caused this unfortunate timing. For, to give the important issues at stake here their due required extensive preparation, including months of discovery by the parties, and consideration and analysis by the district court. But the fact of the timing remains. Appellants ask this court to reverse the district court’s denial of relief, and to grant a preliminary injunction requiring the State to revert to abandoned election prpcedures for which the State maintains it has not, and is not, prepared. For the reasons that follow, I cannot agree that such extraordinary relief should issue. I. To obtain a preliminary injunction, a plaintiff must establish that: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Critically, each of these four requirements must be satisfied. Id. Moreover, a plaintiff must make a “clear” showing both that he is likely to suffer irreparable harm absent relief and he is likely succeed on the merits at trial. Id.; Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 346 (4th Cir.2009), vacated on other grounds, 559 U.S. 1089, 130 S.Ct. 2371, 176 L.Ed.2d 764 (2010). The majority emphasizes that unlawfully or unconstitutionally depriving North Carolinians of the opportunity to vote is an irreparable harm. I do not contend to the contrary. But by the same token, the requested injunction will require the State to halt the ongoing implementation of one of its duly enacted statutes — a statute that, for now at least, has not been rendered invalid. As the Chief Justice recently reminded us, this itself constitutes “a form of irreparable injury.” Maryland v. King, — U.S.-, 133 S.Ct. 1, 3, 183 L.Ed.2d 667 (2012) (Roberts," }, { "docid": "20032269", "title": "", "text": "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. Thus, although the district court’s denial of Earth Island’s request for a preliminary injunction must be reviewed for an abuse of discretion, our review of the district court’s determination as to whether Earth Island was likely to prevail on the merits of its claims necessarily incorporates the APA’s arbitrary and capricious standard. Id. IV. DISCUSSION A party seeking a preliminary injunction must demonstrate (1) that it is likely to succeed on the merits, (2) that it is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in its favor, and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008). “An injunction is a matter of equitable discretion” and is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. at 376, 381. Earth Island argues that the district court improperly assessed Earth Island’s likelihood of success on the merits, applied an erroneous standard for the likelihood of irreparable harm, and incorrectly balanced the equities. A. Likelihood of Success on the Merits First, Earth Island contends that the district court imposed an unreasonably high standard for success on the merits. In doing so, Earth Island relies on the district court’s statement that after Winter, “a heavy burden is imposed on plaintiffs.” Earth Island argues that this means that the district court required more indicia of success on the merits than did Winter. The district court’s statement forms part of a footnote and appears to simply be dictum. At any rate, as Winter plainly demonstrates, it is correct that plaintiffs seeking a preliminary injunction face a difficult task in proving that they are entitled to this “extraordinary remedy.” 129 S.Ct. at 376. Characterizing this as a “heavy burden” was" }, { "docid": "8347421", "title": "", "text": "removal of structures from City-owned property, and prohibiting a thirteen-home expansion of the Development. (See PL’s Mem. at 18-19.) For the reasons stated below, the Court finds that Plaintiff fails to meet the heavy burden of showing that it is entitled to preliminary injunctive relief. A. Legal Standard for Obtaining a Preliminary Injunction The Supreme Court recently reiterated the standard for obtaining a preliminary injunction: “a plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. NRDC, Inc., — U.S.-, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008). A preliminary injunction “is not a remedy which issues as of course.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 311, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982) (quoting Harrisonville v. W.S. Dickey Clay Mfg. Co., 289 U.S. 334, 337-38, 53 S.Ct. 602, 77 L.Ed. 1208 (1933)). Rather, a preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 129 S.Ct. at 375-76. “[I]n making such a showing the movant bears a heavy burden.” New York v. Nuclear Regulatory Comm’n, 550 F.2d 745, 750 (2d Cir.1977) (“NRC”). B. Plaintiff Has Failed to Establish the Threat of Irreparable Harm “A showing of irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.” Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir.2009) (internal quotations omitted); see NRC, 550 F.2d at 750 (“[A] clear showing of the threat of irreparable harm ... is a fundamental and traditional requirement of all preliminary injunctive relief’). To be irreparable, the injury must be one that “cannot be remedied by monetary damages.” Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir.1999) (internal quotations omitted). “Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e.," }, { "docid": "9555218", "title": "", "text": "The plaintiffs’ likelihood of success on the merits. Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir.1991). The Court is satisfied that plaintiffs have met their burden under this four-part test. First, plaintiffs will suffer irreparable injury if the motion for a preliminary injunction is denied. The ballots are scheduled to be printed the first week of February 1992. If Connell does not add Duke’s name before then he will be precluded from running in the primary on March 10, 1992, and his Rhode Island supporters will be denied the opportunity to vote for him and, more importantly, the opportunity to run as delegates to the National Republican Convention pledged to him. In effect the denial of a preliminary injunction would serve to deny plaintiffs all permanent relief. Therefore, there is clearly no adequate remedy at law. Second, Secretary of State Connell will suffer no hardship if relief is granted. Because the ballots have not yet been printed, Duke’s name may be added without delaying the process or increasing the expenses of the primary. Third, the public interest will not be adversely affected by granting the motion. Expanding political opportunity by allowing reasonably broad access to the ballot benefits the political process and the voting public. Lubin v. Panish, 415 U.S. 709, 713, 94 S.Ct. 1315, 1318, 39 L.Ed.2d 702 (1974). Finally, as will be explicated below, plaintiffs are likely to succeed on the merits because they have established a violation of their constitutional rights on equal protection and due process grounds. A. Likelihood of Success on the Merits Constitutional challenges to state election procedures are governed by the following method of inquiry: [The Court] must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the" } ]

[ { "docid": "21510097", "title": "", "text": "Section 550(a) provides: Except as otherwise provided in this section, to the extent that a transfer is avoided under section 544, 545, 547, 548, 549, 553(b), or 724(a) of this title, the trustee may recover, for the benefit of the estate, the property transferred, or if the court so orders, the value of such property, from— (1) the initial transferee of such transfer or the entity for whose benefit such transfer was made; or (2) any immediate or mediate transferee of such initial transferee. The traditional examples of the “entity for whose benefit such transfer was made” are a debtor of the transferee or the guarantor of a debt owed by the bankrupt party to the transferee. See, e.g., In re Columbia Data Prods., Inc., 892 F.2d 26, 29 (4th Cir.1989). In both cases, the transfer of an asset from the bankrupt party to the transferee extinguishes the liability of “the entity for whose benefit such transfer was made.” Thus, we have described that entity as “ ‘someone who receives the benefit but not the money.’ ” Id. (quoting Bonded Fin. Servs., Inc. v. European Am. Bank, 838 F.2d 890, 895 (7th Cir.1988)). However, nothing in the text of § 550(a)(1) limits “the entity for whose benefit” the transfer was made only to a debtor or guarantor and under some circumstances other persons will receive the benefit of a transfer from the bankrupt to a third party. See, e.g., Boyer v. Belavilas, 474 F.3d 375, 377 (7th Cir.2007) (wife of debtor was “the entity for whose benefit” avoidable transfer was made when she diverted funds from custodial accounts for her children to a corporation she owned and controlled). What is apparent from all of these examples is that a person must actually receive a benefit from the transfer in order to be an “entity for whose benefit” the transfer was made. As the Fifth Circuit has observed, our purpose “is to look through the form of the transaction and determine which entity actually benefitted from the transfer.” In re Compton Corp., 831 F.2d 586, 595 (5th Cir.1987); see also In" } ]

[ { "docid": "15728127", "title": "", "text": "Ex. 11C; Expert Report: Ex. IV, Schedule 1, Ex. A, pp. 29/42-30/42 and Schedule 2, Ex. F. pp. 25/50-26/50). The Court concludes TFLP is the immediate transferee of $30,000.00 and VP is the immediate transferee of $30,000.00 of this Transfer. Based on sections 1 through 3 above, the Court concludes the following are liable to the Trustee under 11 U.S.C. § 550 as the mediate or immediate transferee of the MTC Deposited Checks: The Trell Family Limited Partnership $267,250.00 Vinson Partners, L.L.L.P. $135,000.00 Franklin P. Trell $372,250.00 Sunbelt $ 50,000.00 III. ALTER EGO In addition to recovery under 11 U.S.C. §§ 544 and 550, the Trustee has asked the Court to determine that Mr. Trell and Ms. Vinson were the alter egos of the Debtor and therefore liable for all claims in the bankruptcy ease against the Debtor, including all administrative expenses. To justify disregarding a corporate entity as an alter ego, the plaintiff must show the principals “disregarded the corporate entity and made it a mere instrumentality for the transactions of their own affairs; that there is such unity of interest and ownership that the separate personalities of the corporation and the owners no longer exists.” Baillie Lumber Co. v. Thompson, 279 Ga. 288, 290, 612 S.E.2d 296 (2005) (citations omitted). To determine whether the corporate entity has been disregarded, the courts typically look at whether the principals commingled the assets of the company with their personal assets or otherwise confused the assets, records and liabilities of the individual and the corporation. Piercing the corporate veil, or finding that a company is the alter ego of an individual, is justified where the owner treats the company and himself as one unit, Id., or where the owner uses the corporate funds for personal expenses. See Scott Bros., Inc. v. Warren, 261 Ga.App. 285, 582 S.E.2d 224 (2003) (citations omitted). A. Mr. Trell and Ms. Vinson as Alter Ego of Debtor After review of all the evidence, the Court declines to conclude that Mr. Trell and Ms. Vinson were the alter egos of the Debtor. First, Mr. Trell and Ms. Vinson" }, { "docid": "20213840", "title": "", "text": "a “sham,” it did not meet the “fraudulent or wrongful conduct” requirement for veil piercing). Taken together, neither the AC nor Plaintiffs’ opposition identifies any facts adequately alleging the piercing of the veil separating the Goldman Lenders, the PIA Funds and The Goldman Sachs Group. In the absence of adequate factual allegations sufficient to raise a plausible inference that either prerequisite for veil piercing is present, the statutory insider claim is dismissed. B) The Allegations Of the Non-Statutory Insider Claim Are Insufficient In evaluating whether an entity is a non-statutory insider, courts examine two factors: “(1) the closeness of the relationship between the debtor and the transferee, and (2) whether the transactions between the transferee and the debtor were conducted at arm’s length.” In re A. Tarricone, Inc., 286 B.R. at 262; Bruno Machinery Corp. v. Troy Die Cutting Co. (In re Bruno Machinery Corp.), 435 B.R. 819, 833 (Bankr.N.D.N.Y.2010); see also Schubert v. Lucent Techs. Inc. (In re Winstar Commc’ns, Inc.), 554 F.3d 382, 396-97 (3d Cir.2009) (to establish that a creditor is a non-statutory insider, a plaintiff must demonstrate both “[ (1) ] a close relationship between debtor and creditor and ... [ (2) ] anything other than closeness to suggest that any transactions were not conducted at arm’s length” (citation and internal quotation marks omitted)). The legislative history of § 101(31)(B) illustrates that Congress was concerned with situations in which “[a]n insider ... has a sufficiently close relationship with the debtor that his conduct is made subject to closer scrutiny than those dealing at arms length with the debtor.” S.Rep. No. 95-989, 1978 WL 8531, U.S.Code Cong. & Admin. New 1978, at 5787, 5810. Bankruptcy courts have accordingly “focused on the closeness between the transferee and the debtor, the degree of control or influence the transferee exerts over the debtor, and whether the transactions were conducted at arms length.” In re Oakwood Homes Corp., 340 B.R. 510, 523-24 (Bankr.D.Del.2006). With regard to the Goldman Lenders’ relationship with the Debtors Plaintiffs, the Plaintiffs allege no more than that the Goldman Lenders were ordinary commercial lenders that participated in" }, { "docid": "7656541", "title": "", "text": "extent the trustee has successfully invoked the avoidance powers of § 547. Section 550(a)(1) provides that either an “initial transferee” or “the entity for whose benefit such transfer was made” is liable for an avoided transfer. 11 U.S.C. § 550(a)(1); see In re Moskowitz, 85 B.R. 8, 10 (E.D.N.Y.1988). By contrast, a “mediate” or “immediate” transferee (a subsequent transferee) has an additional defense that is not ordinarily available to the initial transferee. Under § 550(b)(1), a trustee may not recover an otherwise avoidable transfer from a subsequent transferee “that takes for value, including satisfaction or securing a present antecedent debt in good faith, and without knowledge of the voidability of the transfer avoided.” See Bonded Fin. Serv. v. European Am. Bank, 838 F.2d 890, 896-97 (7th Cir.1988); Tese-Milner v. Brune (In re Red Dot Scenic, Inc.), 293 B.R. 116, 118 (S.D.N.Y.2003), aff'd, 351 F.3d 57 (2d Cir.2003); Sec. Investor Protection Corp. v. Stratton Oakmont, 234 B.R. 293, 312 (Bankr.S.D.N.Y.1999). Whether a “transferee” under § 550 is an initial or subsequent transferee therefore has significant consequences with respect to liability and available defenses. The Bankruptcy Code does not define the term “transferee,” much less “mediate” or “initial transferee,” and the legislative history is not helpful. Bonded Fin., 838 F.2d at 893. The Second Circuit’s leading case on transferee status under § 550 is Finley, Rumble, where a debtor law firm had purchased malpractice insurance through its insurance broker, which had forwarded the debtor’s premium payments to the insurer. The trustee sued only the broker. The Circuit Court noted that the broker, upon receipt of the funds, did not have the right to put them to its own use but was obligated to transmit them to the insurer. 130 F.3d at 59. The Court held that the broker’s role in the transaction was that of a mere “conduit” and that it was not liable for the payments as an initial transferee under § 550. Id. In Finley, Rumble, the Circuit Court adopted the reasoning of the Seventh Circuit in the Bonded Financial case, noting that the “logic” of Bonded Financial had been" }, { "docid": "20213839", "title": "", "text": "“the firm as a whole” (AC ¶ 75) are insufficient to veil pierce. See e.g., Fletcher, 68 F.3d at 1460-61 (finding statements in advertising materials insufficient to veil pierce, and further finding that documents describing a subsidiary as a “division” did not support veil piercing). The Plaintiffs have also not adequately alleged the second, independent element of a veil-piercing claim that The Goldman Sachs Group used its subsidiaries’ corporate forms as a “sham” to perpetrate a “fraud or injustice.” NetJets Aviation, 537 F.3d at 183; Morris, 82 N.Y.2d at 142, 603 N.Y.S.2d 807, 623 N.E.2d 1157 (in addition to domination, plaintiff must show “that the owners, through their domination, abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against [plaintiff]”). The AC does not allege facts that the Goldman Lenders or the PIA Funds are “sham” entities, nor that they exist as “vehicle[s] for fraud.” See Am. Fuel Corp. v. Utah Energy Dev. Co., 122 F.3d 130, 135 (2d Cir.1997) (because incorporation of a shell corporation was not a “sham,” it did not meet the “fraudulent or wrongful conduct” requirement for veil piercing). Taken together, neither the AC nor Plaintiffs’ opposition identifies any facts adequately alleging the piercing of the veil separating the Goldman Lenders, the PIA Funds and The Goldman Sachs Group. In the absence of adequate factual allegations sufficient to raise a plausible inference that either prerequisite for veil piercing is present, the statutory insider claim is dismissed. B) The Allegations Of the Non-Statutory Insider Claim Are Insufficient In evaluating whether an entity is a non-statutory insider, courts examine two factors: “(1) the closeness of the relationship between the debtor and the transferee, and (2) whether the transactions between the transferee and the debtor were conducted at arm’s length.” In re A. Tarricone, Inc., 286 B.R. at 262; Bruno Machinery Corp. v. Troy Die Cutting Co. (In re Bruno Machinery Corp.), 435 B.R. 819, 833 (Bankr.N.D.N.Y.2010); see also Schubert v. Lucent Techs. Inc. (In re Winstar Commc’ns, Inc.), 554 F.3d 382, 396-97 (3d Cir.2009) (to establish that a creditor is a" }, { "docid": "7656540", "title": "", "text": "filing of the bankruptcy petition.” Christy v. Alexander & Alexander of New York, Inc. (In re Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson & Casey), 130 F.3d 52, 55 (2d Cir.1997). Section 547(b) of the Bankruptcy Code sets forth the elements that a trustee must establish in order to avoid as preferential the prepetition transfer of “any interest of the debtor in property.” Section 547(c) then sets forth sev- eral express defenses. As noted above, two are invoked by USRS: an otherwise preferential transfer may not be avoided to the extent it constitutes (i) a contemporaneous exchange of new value to the debtor or (ii) a payment in the ordinary course of business. 11 U.S.C. § 547(c)(1) and (2). In addition to the defenses specified in § 547(c), courts have implied several other defenses, one of which, the conduit defense, arises out of the relationship between § 547 and § 550 of the Bankruptcy Code and is raised by USRS. Section 550 allows the trustee to recover the transferred property or its value to the extent the trustee has successfully invoked the avoidance powers of § 547. Section 550(a)(1) provides that either an “initial transferee” or “the entity for whose benefit such transfer was made” is liable for an avoided transfer. 11 U.S.C. § 550(a)(1); see In re Moskowitz, 85 B.R. 8, 10 (E.D.N.Y.1988). By contrast, a “mediate” or “immediate” transferee (a subsequent transferee) has an additional defense that is not ordinarily available to the initial transferee. Under § 550(b)(1), a trustee may not recover an otherwise avoidable transfer from a subsequent transferee “that takes for value, including satisfaction or securing a present antecedent debt in good faith, and without knowledge of the voidability of the transfer avoided.” See Bonded Fin. Serv. v. European Am. Bank, 838 F.2d 890, 896-97 (7th Cir.1988); Tese-Milner v. Brune (In re Red Dot Scenic, Inc.), 293 B.R. 116, 118 (S.D.N.Y.2003), aff'd, 351 F.3d 57 (2d Cir.2003); Sec. Investor Protection Corp. v. Stratton Oakmont, 234 B.R. 293, 312 (Bankr.S.D.N.Y.1999). Whether a “transferee” under § 550 is an initial or subsequent transferee therefore has significant consequences" }, { "docid": "3263541", "title": "", "text": "at *8 (S.D.N.Y.2001). 3. The Avoidance of Property From Victor The Victor Defendants next argue that the Trustee has improperly sought to pierce the corporate veil as against Victor personally by seeking to recover from him distributions paid to PSP. They claim that Victor was never a member of the Debtor and that he is not personally liable for the return of distributions that were made to his personal profit sharing plan. The Bankruptcy Code, however, allows a trustee to reach not only the immediate transferee of a fraudulent conveyance but also mediate transferees and persons for whose benefit a transfer was made. See 11 U.S.C. § 550(a)(1);(a)(2). Thus, Victor is properly a defendant on the fraudulent conveyance counts, and the Trustee has leave to amend to specify his claims against Victor. The Victor Defendants are on stronger ground in their assertion that the complaint is inadequate to the extent it seeks to pierce the corporate veil between Victor and PSP. The complaint is entirely lacking in the detailed allegations that are necessary in order to state a claim for piercing the corporate veil. See Wm. Passalacqua Builders, Inc. v. Resnick Developers South, Inc., 933 F.2d 131, 138 (2d Cir.1991); InSITE Servs. Corp. v. Am. Elec. Power Co. (In re InSITE Servs. Corp.), 287 B.R. 79, 96 (Bankr.S.D.N.Y.2002). In his complaint, the Trustee alleges only that PSP is “an entity controlled by Defendant Victor” (Complaint at ¶ 11) (emphasis added), and that Victor “caused” the Debtor to make the transactions at issue. (Complaint at ¶26; ¶50). Although these allegations are not sufficient, the Court will permit the Trustee to amend if he can. 4. The Trustee’s § 544(b) Claims The Victor Defendants next argue that any avoidance claims filed against them pursuant to § 544(b) of the Bankruptcy Code should be dismissed as untimely or as prohibited by the New York LLCL. Section 544(b) of the Bankruptcy Code grants a trustee the power to “avoid any transfer of an interest of the debtor in property ... that is voidable under applicable law by a creditor holding an unsecured claim ...." }, { "docid": "13182383", "title": "", "text": "estate automatically. A recovery, on the other hand, forces the transferee to return the property or become personally liable for its value.” Congress Credit Corp. v. AJC Int’l, 186 B.R. 555, 558 (D.P.R.1995). The purpose of § 550 is “to restore the estate to the financial condition it would have enjoyed if the transfer had not occurred.” Hirsch v. Gersten (In re Centennial Textiles, Inc.), 220 B.R. 165, 176 (Bankr.S.D.N.Y.1998) (citations omitted). Consistent with this purpose, § 550 identifies persons from whom an avoided transfer may be recovered: (a) Except as otherwise provided in this section, to the extent that a transfer is avoided under section 544, 545, 547, 548, 549, 558(b), or 724(a) of this title, the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from— (1) the initial transferee of such transfer or the entity for whose benefit such transfer was made; or (2) any immediate or mediate transferee of such initial transferee. (d) The trustee is entitled to only a single satisfaction under subsection (a) of this section. 11 U.S.C. § 550. Thus, in addition to establishing the avoidability of the transfers in this case, BMC must also establish a means of recovery under § 550(a), and “identify a specific category of persons from whom recovery of the fraudulent transferís] may be had.” See Sec. Investor Prot. Corp. v. Stratton Oakmont, Inc., 234 B.R. 293, 312 (Bankr.S.D.N.Y.1999). BMC argues that it can recover the transfers from TDC as an “initial transferee” and from Chorbajian as an “immediate or mediate transferee” of the transfers. Initial transferees are strictly liable for recovery of preferentially transferred property. Carroll v. Tese-Milner (In re Red Dot Scenic, Inc.), 351 F.3d 57, 58 (2d Cir.2003) (citing 11 U.S.C. § 550(a)). Immediate or mediate transferees, however, may assert a good faith defense to recovery. Id. (citing 11 U.S.C. § 550(b)). The first question is whether TDC is an initial transferee. The Code does not define the term “initial transferee.” The majority of the circuits, including the Second Circuit, apply" }, { "docid": "18214332", "title": "", "text": "trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from— (1) the initial transferee of such transfer or the entity for whose benefit such transfer was made; or (2) any immediate or mediate transferee of such initial transferee. 11 U.S.C. § 550(a) (emphasis added). . See, e.g., In re First Nat'l Parts Exch., Case No. 98 C 5915, 2000 WL 988177, at *14 (N.D.Ill. July 18, 2000) (\"awarding prejudgment interest from the date of the constructively fraudulent transfers”); In re Richmond Produce, Inc., 151 B.R. 1012, 1022 (Bankr. N.D.Cal. 1993) (stating that “under these circumstances, interest should accrue on the sum transferred from the transfer date”). . The Court leaves open for other cases whether prejudgment interest from the date of the transfer should apply to a judgment for recovery of a fraudulent transfer. There is authority to begin accruing prejudgment interest from the date of the commencement of the adversary proceeding. See Bruno Mach. Corp., 435 B.R. 819, 2010 WL 2403124, at *21-22 (\"In this context, interest accrues from the date of the demand, or from the date of the commencement of the adversary proceeding.”) (internal quotation marks and citations omitted). But there may be a stronger basis to accrue interest from the commencement date of the adversary proceeding in a preference action under section 547 than in a fraudulent transfer claim under section 548 of the Bankruptcy Code. See e.g., Bruno Mach. Corp., 435 B.R. at 850 (citing Breeden v. L.I. Bridge Fund L.L.C. (In re Bennett Funding Group, Inc.), Case No. 96-61376, Adv. No. 96-70280A, slip op. at 9 (Bankr.N.D.N.Y. Oct. 30, 1997)): Interest does not run from the date of the preferential transfer, because the transfer is not improper in any respect at the time it occurs. The determination of a preference and the recovery of the transfer under section 550 are based upon a subsequent event — the transferor's bankruptcy filing— and upon a[sic] analysis of the debtor's ... bankruptcy (i.e., that the transferee would receive more if it retained the" }, { "docid": "21743407", "title": "", "text": "from “any immediate or mediate transferee of such transferee.” Id. Because the recovery under section 550(a) “is a form of disgorgement,” Baldi v. Lynch (In re McCook Metals, L.L.C.), 319 B.R. 570, 591 (Bankr. N.D. Ill. 2005), parties who neither received transferred property nor benefitted from a fraudulent transfer in some other way are not subject to liability, Krol v. Wilcek (In re H. King & Assocs.), 295 B.R. 246, 293 (Bankr. N.D. Ill. 2003) (stating that a trustee cannot recover from a “party who has not received any property or benefit from either the debtor or the debtor’s transferee, immediate or mediate”); see also Magten Asset Mgmt. Corp. v. Paul Hastings Janofsky & Walker LLP, No. Civ.A.04-1256-JJF, 2007 WL 129003, at *2 (D. Del. Jan. 12, 2007); Official Comm. of Unsec. Creditors v. Goldman Sachs Credit Partners L.P. (In re Fedders N. Am., Inc.), 405 B.R. 527, 548 (Bankr. D. Del. 2009); Sherman v. FSC Realty LLC (In re Brentwood Lexford Partners, LLC), 292 B.R. 255, 275 (Bankr. N.D. Tex. 2003). That includes liability for damages on an aiding and abetting theory. Overwhelmingly, courts have concluded that parties cannot be liable for a fraudulent transfer if all they have done is participate in it. See, e.g., Mack v. Newton, 737 F.2d 1343, 1357 (5th Cir. 1984); GATX Corp. v. Addington, 879 F.Supp.2d 633, 643 (E.D. Ky. 2012) (noting that “courts generally do not recognize aiding and abetting a fraudulent conveyance as a viable cause of action against a non-transferee”); Baker O’Neal Holdings, Inc. v. Ernst & Young LLP, No. 1:03-CV-0132-DFH, 2004 WL 771230, at *14 (S.D. lnd. Mar. 24, 2004) (“Accessory liability for fraudulent transfers cannot be supported by either the Bankruptcy Code or the [Indiana UFTA]”); Miller v. Greenwich Capital Fin. Prods., Inc. (In re American Bus. Fin. Servs., Inc.), 457 B.R. 314, 324 (Bankr. D. Del. 2011) (“Aiding and abetting a fraudulent transfer is not a valid claim under state or federal law where a trustee is bringing the claim.”); Ray v. Garland (In re Martin), Nos. 08-52631, 10-5059, 2011 WL 6130422, at *5 (Bankr. E.D. Tenn." }, { "docid": "16366193", "title": "", "text": "under section 544 ... the trustee may recover for the benefit of the estate property transferred, or if the court so order, the value of such property, from— (1) the initial transferee of such transfer or the entity for whose benefit such transfer was made; or (2) any immediate or mediate transferee of such initial transferee As § 550(a) indicates, once a transaction has been avoided, the bankruptcy estate may recover from: (a) the initial transferee; (b) the party for whose benefit the initial transfer was made; and/or (c) any subsequent transferee. In re Int’l Mgmt. Assoc., 399 F.3d 1288 (11th Cir.2005); In re Teligent, Inc. 307 B.R. 744 (Bankr.S.D.N.Y.2004). Obviously, a plaintiff in an avoidance action may recover from the initial transferee. In re Model Imperial, Inc., 250 B.R. 776 (Bankr.S.D.Fla.2000); In re Red Dot Scenic, Inc., 293 B.R. 116 (S.D.N.Y.), aff'd, 351 F.3d 57 (2d Cir.2003). If there is not an affirmative good faith defense, then § 550(a) allows recovery from subsequent transferees as well. In re Willaert, 944 F.2d 463, 464 (8th Cir.1991). The question that lingers,.however, is whether an action must first be brought against the initial transferee as a prerequisite to seeking recovery against other parties who may be liable. In re Richmond Produce Co., 195 B.R. 455 (N.D.Cal.1996); In re Resource, Recycling & Remediation, Inc., 314 B.R. 62 (Bankr.W.D.Pa.2004). The crux of the Déféndants’ argument is that the Trustee failed to first sue the initial transferees, Tedder’s law firm and a Tedder entity named Texas International Personnel Corporation (“TIPCO”), before asserting the claims against IBT and SCSD, the subsequent transferees. If, as the Defendants contend, the money first filtered from IAS to Tedder and TIPCO, then the Trustee must first avoid this initial transfer. Accordingly, and as the Defendants’ argument goes, pursuant to Section 550 of the Bankruptcy Code, the Trustee cannot pursue subsequent transferees without avoiding that initial transfer. Section 550(a) plainly states that “to the extent that a transfer is avoided under section 544 ... of this title.” (emphasis added). Defendants primarily rely upon In re Trans-End Technology,. Inc., 230 B.R. 101" }, { "docid": "21743406", "title": "", "text": "[Glick’s] property.” Since the amended complaint alleges no actionable fraudulent transfers, it cannot state claims for aiding and abetting them. That alone warrants dismissal of Counts XI-XVI. See Go-Health, LLC v. Simpson, No. 13 C 2334, 2014 WL 2866222, at *2 n.2 (N.D. Ill. June 24, 2014) (noting that if the claim for the underlying wrong is dismissed, a related aiding and abetting claim “must also be dismissed”). Second, Gierum could not state claims for aiding and abetting fraudulent transfers even if he had alleged actionable fraudulent transfers. Section 550(a) specifically describes what a trustee can recover on a fraudulent transfer claim—and from whom. Whether the claim is for actual or constructive fraud, and whether the trustee is suing under section 548(a) or under section 544(b) and the IUFTA, the trustee can only recover “the property transferred, or, if the court so orders, the value of the property.” 11 U.S.C. § 550(a). That recovery can come only from “the initial transferee of such transfer or the entity for whose benefit such transfer was made” or from “any immediate or mediate transferee of such transferee.” Id. Because the recovery under section 550(a) “is a form of disgorgement,” Baldi v. Lynch (In re McCook Metals, L.L.C.), 319 B.R. 570, 591 (Bankr. N.D. Ill. 2005), parties who neither received transferred property nor benefitted from a fraudulent transfer in some other way are not subject to liability, Krol v. Wilcek (In re H. King & Assocs.), 295 B.R. 246, 293 (Bankr. N.D. Ill. 2003) (stating that a trustee cannot recover from a “party who has not received any property or benefit from either the debtor or the debtor’s transferee, immediate or mediate”); see also Magten Asset Mgmt. Corp. v. Paul Hastings Janofsky & Walker LLP, No. Civ.A.04-1256-JJF, 2007 WL 129003, at *2 (D. Del. Jan. 12, 2007); Official Comm. of Unsec. Creditors v. Goldman Sachs Credit Partners L.P. (In re Fedders N. Am., Inc.), 405 B.R. 527, 548 (Bankr. D. Del. 2009); Sherman v. FSC Realty LLC (In re Brentwood Lexford Partners, LLC), 292 B.R. 255, 275 (Bankr. N.D. Tex. 2003). That includes liability" }, { "docid": "18214331", "title": "", "text": "claims. The remaining claims are subject to coordinated discovery with the claims against the Boulder Defendants in the class action pending in the United States District Court for the Northern District of California, Hunter v. Citibank, No. 5:09-ev-02079-JW, and are unlikely to be resolved for a considerable period of time. CONCLUSION For the reasons stated herein, the Trustee is entitled to prejudgment interest at the bank prime rate accruing on the dates of the transfers, September 7, 2005, June 26, 2006 and September 29, 2006, at 6.5%, 8.0% and 8.25%, respectively, with prejudgment interest accruing from the Commencement Date, March 20, 2009. The Trustee is also entitled to post-judgment interest at the federal judgment rate pursuant to 28 U.S.C. § 1961 after entry of a judgment. The Trustee shall settle a judgment including prejudgment interest in accordance with Local Bankruptcy Rule 9074-1(a). . Section 550(a) provides: Except as otherwise provided in this section, to the extent that a transfer is avoided under section 544, 545, 547, 548, 549, 553(b), or 724(a) of this title, the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from— (1) the initial transferee of such transfer or the entity for whose benefit such transfer was made; or (2) any immediate or mediate transferee of such initial transferee. 11 U.S.C. § 550(a) (emphasis added). . See, e.g., In re First Nat'l Parts Exch., Case No. 98 C 5915, 2000 WL 988177, at *14 (N.D.Ill. July 18, 2000) (\"awarding prejudgment interest from the date of the constructively fraudulent transfers”); In re Richmond Produce, Inc., 151 B.R. 1012, 1022 (Bankr. N.D.Cal. 1993) (stating that “under these circumstances, interest should accrue on the sum transferred from the transfer date”). . The Court leaves open for other cases whether prejudgment interest from the date of the transfer should apply to a judgment for recovery of a fraudulent transfer. There is authority to begin accruing prejudgment interest from the date of the commencement of the adversary proceeding. See Bruno Mach. Corp., 435 B.R. 819, 2010 WL" }, { "docid": "22521777", "title": "", "text": "whether 'assets such as ... employees, patient files, office space, goodwill and overall going concern value were (a) properly considered property ... such that they would have been included in the estate for the benefit of creditors; and (b) if so, whether they were transferred [to the debtor or a new entity]. Id. (citing Watman I, 301 F.3d at 11-12 (footnote omitted) ). As this Court observed in Butler v. Candlewood Road Partners, LLC (In re Raymond), 529 B.R. 455 (Bankr. D. Mass. 2015), \"[t]he doctrines of veil piercing, reverse veil piercing and alter ego are interrelated and litigants often use the terms interchangeably.\" Id. at 471. Nevertheless, veil piercing and alter ego can be distinguished. See U.S. Trustee v. Zhang (In re Zhang), 463 B.R. 66, 81 (Bankr. S.D. Ohio 2012). \"The former asks a court to hold A vicariously liable for B's debts, while the latter asserts that A and B are the same entity and therefore liability is direct.\" Id. (citing IUUA Local 600 v. Aguirre, 410 F.3d 297, 302 (6th Cir. 2005) ). As noted above, in the circumstances of this case, Patriot is not attempting to obtain satisfaction of its judgment from the assets of National Tax Institute, Inc., CPE Meetings Inc., or Fustolo CPE, LLC. Rather, it seeks a determination that the assets of National Tax Institute, Inc., CPE Meetings Inc. were the Debtor's assets that became estate property upon the filing of the bankruptcy petition, as well as a determination that the Debtor transferred those assets postpetition to Fustolo CPE, LLC with fraudulent intent, thus warranting denial of his discharge. According to the court in Pisculli v. T.S. Haulers, Inc. (In re Pisculli), 426 B.R. 52 (E.D.N.Y. 2010), aff'd , 408 F.App'x 477 (2d Cir. 2011), Although Section 727(a)(2)(B) only applies to \"property of the estate,\" a court may pierce the corporate veil of a business and treat its assets as the debtor's individual property, and, thus, property of the debtor's estate, under an alter ego theory. See, e.g. In re Riley, 351 B.R. 662, 671 (Bankr. E.D. Wis. 2006) ; In re" }, { "docid": "1366021", "title": "", "text": "Ascot’s sole general partner. As such, any transfers received by Ascot can be recovered from Merkin, as Ascot’s only general partner, pursuant to Delaware partnership liability law. Moreover, even if section 550 indeed precludes a state law partnership theory of liability, which it does not, this Court has found that the Trustee sufficiently pled that the transfers to Ascot are recoverable from Merkin as a subsequent transferee under section 550(a)(2) of the Code. See infra at Section V. Accordingly, the Trustee has properly alleged a claim for relief against Merkin personally under state partnership law and as a subsequent transferee under the Code. V. THE TRUSTEE HAS ADEQUATELY PLED CLAIMS TO RECOVER SUBSEQUENT TRANSFERS FROM THE MERKIN DEFENDANTS The Trustee has sufficiently pled Count Ten of the Complaint to recover funds subsequently transferred to the Merkin Defendants under section 550(a)(2) of the Code and section 278 of the NYDCL. See 11 U.S.C. § 550(a)(2) (allowing recovery from “any immediate or mediate transferee of such initial transferee”); NYDCL § 278 (allowing recovery from “any person”); Farm Stores, Inc. v. Sch. Feeding Corp., 102 A.D.2d 249, 255, 477 N.Y.S.2d 374 (App.Div.2d Dep’t 1984) (“each transferee ... is liable to the creditor to the extent of the value of the money or property he or she wrongfully received.”) (emphasis added). In determining whether a claim to recover fraudulent transfers from a subsequent transferee is adequately pled, the Court need only apply a Rule 8 analysis. SIPC v. Stratton Oakmont, Inc., 234 B.R. 293, 317-18 (Bankr.S.D.N.Y.1999) (“[R]e-covery under § 550(a) is not subject to a particularized pleading standard-”). As such, the Trustee must provide only a “short and plain statement of the claim showing that [he] is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The purpose of this pleading requirement is to ensure that the defendant receives “fair notice of what the ... claim is and the grounds upon which it rests.” Scheidelman v. Henderson (In re Clinton B. Henderson), 423 B.R. 598, 612 (Bankr.N.D.N.Y.2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (internal quotations omitted). The" }, { "docid": "20642462", "title": "", "text": "Hill Property and the O/G Lease will be denied. C. Recovery from the Flahertys As Initial Transferees A more complex analysis is necessary with respect to the Trustee’s § 550(a)(1) claim against the Flahertys. Endless, not the Flahertys was the record “initial transferee” of the Doty Hill Property and the O/G Lease. Faced with this fact, the Trustee offers two (2) alternative legal theories for recovery against the Flahertys under § 550(a)(1). The Trustee first puts forward an alter ego theory of liability. Essentially, the Trustee asserts that the corporate form of Endless should be pierced and that the Flahertys should be treated as initial transferees and held liable for the fraudulent transfers the Debtor made to Endless. Alternatively, the Trustee seeks to recover under the “beneficiary” theory of liability. He asserts that the Flahertys are liable for the transfers because they benefited for a debt paid, even though they did not receive the money. The Trustee argues that, eveii though neither the Doty Hill Property nor the O/G Lease were transferred to the Flahertys, they are liable under § 550(a)(1) because the transfers effected a satisfaction of other debts they owed, thereby benefiting them. Both theories fail at the summary judgment stage. 1. alter ego theory There is case law supporting the use of an alter ego theory of liability under 11 U.S.C. § 550. See, e.g., In re Alpha Protective Servs., Inc., 531 B.R. 889, 909-10 (Bankr.M.D.Ga.2015) (invoking Georgia “alter ego” law and denying defendant’s motion for judgment on the pleadings); In re Hansen, 341 B.R. 638, 643 (Bankr.N.D.Ill.2006) (acknowledging applicability of “alter ego” theory under § 550(a), applying Illinois law, but granting defendant summary judgment for lack of evidence). The theory is very straightforward. If, under applicable nonbankruptcy law (typically state law), an artificial entity defendant is the “alter ego” of an individual, the entity’s liability under § 550(a) also is imposed on the individual. Under Pennsylvania law, there is a strong presumption in favor of respecting the veil of an artificial entity. See Lumax Indus., Inc. v. Aultman, 543 Pa. 38, 669 A.2d 893, 895 (1995);" }, { "docid": "17375024", "title": "", "text": "reasonable discovery of the fraud in accordance with the New York discovery rule, and, in any event, this issue will be more fully determined after discovery upon summary judgment or a trial on the merits. V. The Trustee has Adequately Pled Claims To Recover Subsequent Transfers From the Cohmad Representatives The Trustee has sufficiently pled Count Nine of the Complaint to recover Subsequent Transfers of Commissions from the Cohmad Representatives pursuant to sections 550(a)(2) of the Code and 278 of the NYDCL. See 11 U.S.C. § 550(a)(2) (“[T]o the extent that a transfer is avoided ... the trustee may recover ... the property transferred ... from ... any immediate or mediate transferee of such initial transferee.”); NYDCL § 278 (allowing recovery from “any person”); Farm Stores, Inc. v. Sch. Feeding Corp., 102 A.D.2d 249, 255, 477 N.Y.S.2d 374 (App.Div.2d Dep’t 1984) (“[E]aeh transferee ... is liable to the creditor to the extent of the value of the money or property he or she wrongfully received.”). The Cohmad Representatives, all apparently assuming that the Trustee seeks to avoid their Commissions as initial transferees of fraudulent transfers, argue that the Complaint does not contain factual allegations supporting their awareness of the fraud, and, pursuant to Churchill, their commissions are therefore not avoidable. However, because the Trustee seeks to recover Commissions from the Cohmad Representatives as subsequent transferees, not initial transferees, the Trustee need not prove a prima facie case of avoid-ability against them. Compl. ¶ 191. (“On information and belief ... the Commissions[ ] were subsequently transferred by Cohmad directly or indirectly to the Coh-mad Representatives ... in the form of payment of commissions or fees.”); see also Stratton Oakmont, Inc., 234 B.R. at 318 (“The Trustee need not allege that Nancy or Nadine, as [subsequent] transferees, intended to defraud Stratton....”). In order to adequately state his claims against the Cohmad Representatives to recover Subsequent Transfers of Commissions under the Code or the NYDCL, the Trustee need only meet a Rule 8(a) standard. See Stratton Oakmont, Inc., 234 B.R. at 317 (“[Recovery under § 550(a) is not subject to a particularized pleading" }, { "docid": "10750872", "title": "", "text": "otherwise, the alleged fraudulent transfers. See AC at ¶¶ 8, 9, 13, 19. As stated above, the alleged transfers deprived the Debtor of its most valuable assets and left it unable to meet its liabilities. See also AC at ¶ 22 (describing the post-transfer plight of the Debtor). Based on the foregoing allegations, the Court concludes that the fourth element of the claim has also been sufficiently detailed. Because each element of the Trustee’s claim against Grewal for breach of fiduciary duty has been alleged sufficiently, the Court hereby denies the Rule 12(b)(6) motion to the extent it relates to this claim. Cf. Benedict, 877 P.2d at 1369 (finding a breach of fiduciary duty claim to be adequately pleaded based on plaintiffs allegations (1) that defendants caused the debtor to make payments due thereto to another corporation in which defendants were the sole shareholders, and (2) that such action was taken to defeat the claims of plaintiff). Turnover of Property The Code separates the concept of avoidance of a fraudulent transfer from the recovery of such a transfer. See In re Teligent, Inc., 307 B.R. 744, 749 (Bankr.S.D.N.Y.2004). Once the grounds for avoiding a transfer have been demonstrated, the Trustee faces the second hurdle of establishing a method of recovery under Section 550(a) of the Code through, inter alia, identifying the persons from whom recovery may be obtained. See Stratton Oakmont, Inc., 234 B.R. at 312. Section 550(a) of the Code provides in relevant part: Except as otherwise provided in this section, to the extent that a transfer is avoided under section ... 548 ... of this title, the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property from— (1) the initial transferee of such transfer or the entity for whose benefit such transfer was made; or (2) any immediate or mediate transferee of such initial transferee. Thus, recovery of an avoided transfer is available from (A) the initial transferees of the relevant property, (B) the subsequent transferees and (C) the entities for whose benefit the" }, { "docid": "6539253", "title": "", "text": "although section 549 enables the trustee to avoid unauthorized post-petition transfers of property, section 550 directs that the recovery be made from the transferee of the property. Specifically, section 550(a) reads as follows: (a) except as otherwise provided in this section, to the extent that a transfer is avoided under section 544, 545, 547, 548, 549 or 724(a) of this title, the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from— (1) the initial transferee of such transfer or the entity for whose benefit such transfer was made; or (2) any immediate or mediate transferee of such initial transferee. Cases under the former Bankruptcy Act, which had a provision similar to section 550, held consistently that the transferor is not the proper party to be held liable where a trustee is exercising his avoiding powers. See e.g., Elliott v. Glushon, 390 F.2d 514 (9th Cir.1967); Klein v. Tabatchnick, 459 F.Supp. 707, 718 (S.D.N.Y.1978) aff'd in part, rev’d in part, 610 F.2d 1043 (2d Cir.1979)(footnote 4 affirms relevant holding); Robinson v. Watts Detective Agency, Inc. 685 F.2d 729 (1st Cir.1982), cert. denied 459 U.S. 1105, 103 S.Ct. 728, 74 L.Ed.2d 436 (1983); Star Sprinkler Corporation v. Jackson, 575 F.2d 1223, 1234 (8th Cir.1978); Gough v. Titus (In re Christian and Porter Aluminum Company), 584 F.2d 326, 338-39 (9th Cir.1978); Haux v. Gerson (In re Gerson), 35 B.R. 129, 130 (Bankr. 9th Cir.); see also Smyth v. Kaufman, 114 F.2d 40, 43 (2d Cir.1940). Such a holding recognized the very purpose of a trustee’s avoiding powers which is to preserve estate assets rather than to render civilly liable those who have dissipated such assets. Elliot v. Glushon, 390 F.2d at 516. The theme under the Act emerges in the Code through section 550. See Gropper v. Unitrac, S.A. (In re Fabric Buys of Jericho, Inc.), 33 B.R. 334 (Bankr.S.D.N.Y.1983); Salomon v. Nedlloyd, Inc. (In re Black & Geddes, Inc.), 59 B.R. 873 (Bankr.S.D.N.Y.1986). Accordingly, since Kaiser was only the transferor of the vacations checks, we hold that" }, { "docid": "22524096", "title": "", "text": "the Foundation is obligated to pay for goods and services to benefit solely the University if funds are available and the expenditures fit within the donors' intentions, the University does not own or directly control the assets of the Foundation. The University must therefore be considered a conduit for the Foundation in all the circumstances of this case. D. Transfer Beneficiary Finally, the trustee argued in his trial brief and at trial that even if the University was not an initial transferee under § 550(a)(1), it should still be held liable as the entity for whose benefit the transfer was made. Section 550 provides that the trustee can recover from the initial transferee \"or the entity for whose benefit such transfer was made ....\" 11 U.S.C. § 550(a)(1). That entity, often referred as a \"transfer beneficiary,\" is a person who receives a benefit from the initial transfer even though it is not the actual recipient of the funds. See Bonded , 838 F.2d at 896 ; Peterson v. Hofmann (Delta Phones, Inc. ), No. 05 A 1205, 2005 WL 3542667, at *4 (Bankr. N.D. Ill. Dec. 23, 2005). The entity must benefit from the transfer directly, not indirectly, as soon as the transfer is made. See, e.g., Delta Phones , 2005 WL 3542667, at *4. As noted above, the Seventh Circuit has held that \"[a] subsequent transferee cannot be the 'entity for whose benefit' the initial transfer was made.\" Bonded , 838 F.2d at 896 ; Delta Phones , 2005 WL 3542667, at *6 ; Laird v. Bartz (In re Newman Cos., Inc. ), 140 B.R. 495 (Bankr. E.D. Wis. 1992). \"The structure of the statute separates initial transferees and beneficiaries, on the one hand, from 'immediate or mediate transferee[s]', on the other. The implication is that the 'entity for whose benefit' is different from a transferee, 'immediate' or otherwise.\" Bonded , 838 F.2d at 895 ; S.I.P.C. v. Bernard L. Madoff Investment Securities LLC , 531 B.R. 439, 474 (Bankr. S.D.N.Y. 2015). Because the liability of subsequent transferees is addressed in § 550(a)(2), \"the 'entity for whose benefit' phrase" }, { "docid": "13751456", "title": "", "text": "but to the identity of the entity from which he may recover in consequence of the avoidance. After a trustee avoids a transfer and 11 U.S.C. § 551 has automatically snared the subject asset or value , 11 U.S.C. § 550 names the party or parties that are liable to the estate. 11 U.S.C. §§ 550(a)-(b) are the provisions relevant to the situation at bar: where funds extracted from a debtor can be traced intact through a series of transfers close in time, and linked by agreement. As a general proposition, § 550(a) allows recovery from all participants in the chain of transfers. In re Sherman, 67 F.3d 1348, 1356 (8th Cir.1995). Section 550(b), however, sets a dividing line of vulnerability at a point along that chain. Simply stated, [U]nder § 550(b), a mediate or immediate transferee receives protection if it has tak en for value in good faith without knowledge of the voidability of the transfer. However, an initial transferee receives no such protection. In re Baker & Getty Financial Services, Inc., 974 F.2d 712, 721 (6th Cir.1992). See also In re Sherman, 67 F.3d at 1356. Thus, the initial transferee of an avoided transfer is strictly liable to the estate, whether it colluded with the debtor or was an innocent and unwitting recipient. In re Bullion Reserve of North Am., 922 F.2d 544, 547 (9th Cir.1991); Bonded Fin’l Serv., Inc. v. European American Bank, 838 F.2d 890, 895 (7th Cir.1988); In re Moskowitz, 85 B.R. 8,10 (E.D.N.Y.1988); In re Dominion Corp., 199 B.R. 410, 413 (9th Cir. BAP 1996). A subsequent transferee, mediate or immediate, may avoid liability upon a showing of status analogous to that of a bona fide purchaser. In re Coutee, 984 F.2d 138, 140 n. 2 (5th Cir.1993); In re C-L Cartage Co., Inc., 899 F.2d 1490, 1495 (6th Cir.1990); In re Chase & Sanborn Corp., 848 F.2d 1196, 1201 (11th Cir.1988); In re Presidential Corp., 180 B.R. 233, 236 (9th Cir. BAP 1995); Cf. Bonded Fin’l Serv., 838 F.2d at 896 n. 3 (“... subsequent transferees who lack ‘good faith’ must stand and" } ]

[ { "docid": "22669600", "title": "", "text": "denial of a motion to reopen on the grounds that the motion was untimely and that petitioner Luis failed to argue to the BIA that it should have exercised its sua sponte power. It then stated: Assuming arguendo that Luis would have exhausted her administrative remedies [by raising the sua sponte argument below], this court still has no jurisdiction to review this claim because the decision of the BIA whether to invoke its sua sponte authority is committed to its unfettered discretion. Therefore, the very nature of the claim renders it not subject to judicial review. Id. at 40 (emphasis added). The First Circuit wrote that under Heckler, the lack of guidelines and standards dictating the BIA’s sua sponte power deprived the court of “jurisdiction to review Luis’s claim that the BIA should have invoked its sua sponte authority to reconsider her motion to reopen the deportation proceedings.” Id. at 41. See also Prado v. Reno, 198 F.3d 286, 292 (1st Cir.1999) (“[B]ecause ‘the decision of the BIA whether to invoke its sua sponte authority is committed to its unfettered discretion,’ Prado’s claim is simply not justiciable.” (citation omitted)). The position of other circuits on this issue is somewhat ambiguous, but no other circuit has squarely held that the BIA’s refusal to invoke its sua sponte authority under § 3.2(a) is subject to judicial review. Cf. Socop Gonzalez v. INS, 208 F.3d 838 (so holding), vacated by 229 F.3d 860 (9th Cir.2000) (ordering rehearing en banc). In Wang v. Ashcroft, 260 F.3d 448 (5th Cir.2001), the Fifth Circuit noted but failed to reach the question of reviewability. In Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999), the Eleventh Circuit wrote that § 3.2(a) “gives the BIA non-reviewable discretion to dismiss Anin’s claim. We can find no abuse of discretion here.” The Anin court seemed to state simultaneously (and inconsistently) that the BIA’s discretion to deny a motion to reopen is non-reviewable, and that in reviewing the denial it found no abuse of discretion. (Or it is conceivable that the Anin court, in saying that it “can find no abuse" } ]

[ { "docid": "22669183", "title": "", "text": "the IJ arguing that his client never intended to give up his right to present his asylum claim, but only withdrew his application because he believed the IJ did not intend to grant asylum. The IJ found Cano had failed to demonstrate prima facie eligibility for the relief sought and denied his motion to reopen. On December 22, 1997, Cano filed before the IJ a motion to reconsider denial of his motion to reopen. Cano’s attorney reported that Cano “withdrew the asylum claim only because he understood that the [IJ] would not grant it,” and was relying on the IJ as “a person of authority ... to help him assess [his] asylum claim.” Cano alleged the IJ denied him due process, contested that he was not allowed to “explain or rebut” material contained in the Guatemala report, and asserted that he could have demonstrated a well-founded fear of persecution. The IJ denied Cano’s motion to reconsider. Cano appealed this decision to the BIA and filed also a motion to reopen with the BIA to seek relief under the Conven tion Against Torture. The BIA affirmed the IJ’s decision, dismissed Cano’s appeal, and denied his motion to reopen. This petition followed. STANDARD OF REVIEW We review the BIA’s denial of motions to reopen or to reconsider for abuse of discretion, “although[de novo] review applies to the BIA’s determination of purely legal questions.” Mejia v. Ashcroft, 298 F.3d 873, 876 (9th Cir.2002); see also Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000) (motion to reopen); Padilla-Agustin v. INS, 21 F.3d 970, 973 (9th Cir.1994), overruled on other grounds by Stone v. INS, 514 U.S. 386, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (motion to reconsider). “We review de novo claims of due process violations in deportation proceedings.” Perez-Lastor v. INS, 208 F.3d 773, 777 (9th Cir.2000) (citation omitted). Review is limited to the BIA’s decision because the BIA reviewed the IJ’s decision de novo. Agyeman v. INS, 296 F.3d 871, 876 (9th Cir.2002). DISCUSSION I Due Process Cano argues that the BIA abused its discretion by failing to address his claim" }, { "docid": "22150050", "title": "", "text": "the parties. Id. The record does not indicate that the Department of Homeland Security either opposed or agreed to Diaz’s request for administrative closure. On December 27, 2005, the BIA adopted the IJ’s decision in its entirety. The BIA also denied Diaz’s request for administrative closure on the ground that “her eventual adjustment of status is still speculative at this time,” because she “has not shown prima facie eligibility” for adjustment of status. II In her petition for review, Diaz does not challenge the BIA’s and IJ’s hardship determination, which we lack jurisdiction to review in any event. See 8 U.S.C. § 1252(a)(2)(B)(ii); Romero-Torres v. Ashcroft, 327 F.3d 887, 891 (9th Cir.2003). Rather, she argues that the BIA abused its discretion in denying her request for administrative closure. Before we reach the merits of her claim, we must determine whether we have jurisdiction to review the BIA’s denial. “[W]e have jurisdiction to determine our own jurisdiction,” Sareang Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000), and an obligation to do so sua sponte, Spencer Enters. v. United States, 345 F.3d 683, 687 (9th Cir.2003). Although we have not previously addressed our jurisdiction to consider denials of requests for administrative closure, we are guided by our prior decision in Ekimian v. INS, 303 F.3d 1153 (9th Cir.2002), which involved a substantially similar issue. In Ekimian, the BIA had denied a motion to reopen on the ground that it was untimely and declined to reopen proceedings sua sponte. On appeal, we upheld the BIA’s determination that the motion was untimely. We also considered the petitioners’ argument that the BIA abused its discretion by declining to reopen the proceeding sua sponte under 8 C.F.R. § 3.2(a) (now codified at 8 C.F.R. § 1003.2(a), see 68 Fed.Reg. 9824, 9830 (Feb. 28, 2003)), which states: The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision. A request to reopen or reconsider any case in which a decision has been made by the Board, which request is made by the Service, or by" }, { "docid": "22663335", "title": "", "text": "sua sponte is a discretionary decision that cannot be reviewed by the Courts of Appeals. See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir.2004) (holding that because the “Code of Federal Regulations suggests that no meaningful standard exists against which to judge an IJ’s decision to exercise sua sponte authority to reopen deportation proceedings,” such decisions are committed to the discretion of the BIA and therefore unreviewable); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003) (same); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003) (same); Ekimian v. INS, 303 F.3d 1153, 1157-58 (9th Cir.2002) (same); Luis v. INS, 196 F.3d 36, 40-41 (1st Cir.1999) (same); see also Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003) (“[F]ailure to reopen sua sponte is a discretionary decision that is unreviewable ....”); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999) (holding that 8 C.F.R. § 1003.2(a) gives the BIA “non-reviewable discretion” to' decline to reopen deportation proceedings). We hereby join our sister circuits in holding that a decision of the BIA whether to reopen a case sua sponte under 8 C.F.R. § 1003.2(a) is entirely discretionary and therefore beyond our review — in other words, we lack jurisdiction to review the BIA’s decision not to reopen Ali’s immigration proceedings sua sponte. H? Hi H: * * * We have considered all of petitioners’ arguments and found each of them to be without merit. Accordingly, we Deny those parts of Ali’s petition for review that pertain to the BIA’s denial of Ali’s motion to reopen and Dismiss for lack of jurisdiction Ali’s challenge to the BIA’s discretionary decision not to exercise its authority to reopen proceedings sua sponte. . 8 C.F.R. § 1003.2(a) provides, in relevant part, that The [BIA] may at any time reopen or reconsider- on its own motion any case in which it has rendered a decision. A request to reopen or reconsider any case in which a decision has been made by the Board, which request is made by the Service, or by any party affected by the decision, must be in the form of a" }, { "docid": "898551", "title": "", "text": "reconsider was denied, that she did have a right to appeal to the BIA and instructing her to follow the normal procedure by filing that appeal “with the Board of Immigration Appeals within 30 calendar days.” Finally, any concerns about delays in the reinstatement process caused by petitioners who appeal to the BIA instead of petitioning directly to this court should be minimal in future cases: in light of our opinion, the BIA would be well advised to institute a process for quickly dismissing such appeals. More important, the agency can without delay correct its practice of misleading immigrants by changing its erroneous notices, both by the IJ and in the document accompanying the notice of decision. Instead of erroneously advising petitioners to appeal to the BIA or that they have no further legal recourse at all, its notices could inform them, for example, that their sole remedy in the case of a negative reasonable fear determination is to petition this court for review within thirty days of the IJ’s decision. In light of these circumstances, we hold that the “final” order in this case is the BIA’s dismissal of Ayala’s appeal. Because Ayala’s petition for review was filed four days after this final order, it is timely filed, and we have jurisdiction to review the IJ’s denial of the motion to reopen and reconsider. II. The IJ abused his discretion in denying Ayala’s motion to reopen and reconsider. A motion to reconsider addresses whether an IJ made errors of law or fact, whereas a motion to reopen may be granted only upon a proffer of new evidence that “is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.23(2), (3); accord Iturribarria v. I.N.S., 321 F.3d 889, 895 (9th Cir. 2003). “We review the BIA’s denial of motions ... to reconsider for abuse of discretion, although [de novo] review applies to the BIA’s determination of purely legal questions.” Cano-Merida v. I.N.S., 311 F.3d 960, 964 (9th Cir. 2002) (internal quotation marks omitted) (alteration in original). At the hearing" }, { "docid": "22760423", "title": "", "text": "hearing....” 8 C.F.R. § 1003.2(c)(1). The BIA did not abuse its discretion when it declined to reopen proceedings because Membreno presented no new facts in her motion to reopen. DISMISSED in part and DENIED in part. . We adopt much of our factual statement and procedural history from the summary set forth in the earlier three-judge panel opinion at Membreno v. Ashcroft, 385 F.3d 1245, 1246-47 (9th Cir.) (per curiam), withdrawn by 388 F.3d 738 (9th Cir.2004). . The Department of Justice transferred the functions of the Immigration and Naturalization Service to the Department of Homeland Security in March 2003. See Homeland Security Act of 2002, Pub.L. No. 107-296, § 471, 116 Stat. 2135, 2205 (codified at 6 U.S.C. § 291) (2002). For convenience, we refer to the INS throughout rather than the Department of Homeland Security. . Because the BIA summarily affirmed the IJ’s decision we review the IJ's decision as if it were the BIA's decision. Thomas v. Gonzales, 409 F.3d 1177, 1182 (9th Cir.2005) (en banc). . Our case law recognizes two exceptions to this rule, but Membreno does not claim, and cannot claim, that either exception applies here. See Singh, 315 F.3d at 1188 (noting that court of appeals can assert jurisdiction over untimely petitions for review where alien was officially misled as to time in which to file notice of appeal or where BIA failed to comply with certain federal regulations requiring the mailing of its decision to the petitioner's (or his counsel’s) address of record). . We cannot here grant relief on the petition for review by construing Membreno's motion to reopen instead as a motion to reconsider. See Mohammed v. Gonzales, 400 F.3d 785, 792 (9th Cir.2005) (affirming the BIA’s decision to construe a motion to reconsider as a motion to reopen when the motion alleged new facts rather than legal error). A motion to reconsider must be filed \"within 30 days after the mailing of the Board decision,” 8 C.F.R. § 1003.2(b)(2), and Membreno's motion was filed nearly 90 days after the initial decision. Furthermore, a motion to reconsider \"shall state the" }, { "docid": "22792288", "title": "", "text": "on the record as a whole.” Id. at 10-11. Finally, he argues that the decision in Lozada does not always require the filing of a complaint against former counsel because the BIA or another attorney would be better suited to report the ineffectiveness of former counsel, particularly where the petitioner is in custody. Id. at 11. Appellate Jurisdiction A. Sua Sponte Reopening With respect to plaintiffs first issue, we do not have jurisdiction to consider petitioner’s claim that the BIA should have sua sponte reopened the proceedings under 8 C.F.R. § 1003.2(a) because there are no standards by which to judge the agency’s exercise of discretion. See BelayGebru v. INS, 327 F.3d 998, 1000 (10th Cir.2003). B. BIA Order on Removal We also do not have jurisdiction to review the BIA’s June 19, 2002 order affirming the IJ’s denial of petitioner’s application for asylum because he did not timely file a petition for review from that order within thirty days as required by 8 U.S.C. § 1252(b)(1). See Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir.2003) (dismissing petition for review for lack of jurisdiction because petition was not timely filed); see also Boudaguian v. Ashcroft, 376 F.3d 825, 827 (8th Cir.2004) (noting lack of jurisdiction over removal order where no timely petition of review filed from that order). C.BIA Order Denying Motion to Reopen We do, however, retain jurisdiction to consider the BIA’s denial of petitioner’s motion to reopen the proceedings. We recently held that we lacked jurisdiction to review an IJ’s denial of a motion for continuance because that is a form of discretionary relief for which judicial review is precluded under 8 U.S.C. § 1252(a)(2)(B)(ii). Yerkovich v. Ashcroft, 381 F.3d 990, 994 (10th Cir.2004). A motion to reopen, on the other hand, is separately authorized by 8 U.S.C. § 1229a(c)(6) (describing requirements for motion to reopen), as further explicated by 8 C.F.R. § 1003.2(c). It is considered a final, separately appealable order. See Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (interpreting prior version of Immigration and Naturalization Act). Moreover, a" }, { "docid": "23241557", "title": "", "text": "claims of persecution and harassment and concluded that she was not credible because she had submitted fraudulent documents in an attempt to establish that she was Jewish. The BIA adopted and affirmed the IJ’s decision, and we denied Averianova’s petition for review. See id. at 895 (“The combination of an adverse credibility finding and a lack of corroborating evidence for the claim of persecution means that the applicant’s claim fails, ‘regardless of the reason for the alleged persecution.’ ” (quoting Sivakaran v. Ashcroft, 368 F.3d 1028,1029 (8th Cir.2004))). On June 19, 2007, Averianova filed a motion to reopen removal proceedings. She argued that reopening was warranted because her husband had become a U.S. citizen and had applied for a visa that, if approved, would allow her to apply for adjustment of status. Because her motion was untimely, Averianova asked the BIA to exercise its discretion to reopen the case sua sponte. The BIA declined to reopen the case sua sponte and denied Averianova’s motion on March 7, 2008. On April 14, 2008, Averianova filed a motion with the BIA entitled, “Motion for Reconsideration & Motion to Reopen Removal Proceedings Due to Changed Country Conditions.” The BIA treated this motion as two separate motions: one seeking reconsideration of its previous denial of Averianova’s motion to reopen and another seeking to reopen under 8 C.F.R. § 1003.2(c)(3)(ii) based on changed country conditions. On August 25, 2008, the BIA denied both motions on their merits. Averianova petitions for review of the denial of her motion to reconsider and second motion to reopen. II. DISCUSSION We first consider whether we have jurisdiction to review the BIA’s denial of Averianova’s motion to reconsider its denial of her initial motion to reopen. We held in Tamenut v. Mukasey, 521 F.3d 1000 (8th Cir.2008) (en banc) (per curiam), that “the decision whether to reopen removal proceedings sua sponte is committed to the BIA’s discretion by law ... [and] we lack jurisdiction to review the agency’s discretionary decision,” id. at 1001 (internal citation omitted). Thus, because Averianova’s initial motion to reopen sought relief under the BIA’s discretionary authority" }, { "docid": "5172670", "title": "", "text": "Judge)”) (emphasis added); see also Tapia-Martinez, 482 F.3d at 420-22 & n. 4 (finding a second motion to reopen to be numerically barred under § 1003.2(c)(2) where petitioner filed her first motion to reopen with the Immigration Judge, which denied the motion and which the BIA affirmed, and filed her second motion to reopen with the BIA). Finally,. Lindor argues that the BIA should have reopened his case sua sponte under 8 C.F.R. § 1003.2(a), which provides that the BIA “may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.” We have previously held that we “lack[] jurisdiction to find that the BIA abused its discretion by failing to exercise its discretionary authority to reopen [the petitioner]’s proceedings.... The decision whether to invoke sua sponte authority is committed to the unfettered discretion of the BIA ... [and is] not subject to judicial review.” Harchenko v. INS, 379 F.3d 405, 410-11 (6th Cir.2004) (citations and quotation marks omitted). Thus, we dismiss the petition for lack of jurisdiction insofar as it requests this court to review the BIA’s failure to exercise its sua sponte authority. See Barry v. Mukasey, 524 F.3d 721, 726 (6th Cir.2008). III. CONCLUSION For the reasons stated above, we GRANT the petition in part and RE MAND to the BIA for further proceedings consistent with this court’s opinion, DISMISS the petition for review insofar as we lack jurisdiction to review the BIA’s failure to exercise its sua sponte authority, and otherwise DENY the petition for review. . The order additionally provided that remaining in the United States past the voluntary departure date would also make Lindor ineligible for various forms of relief, including adjustment or change of status, for a period of ten years from scheduled departure. . Lindor did not petition this court to review the BIA’s denial of his first motion to reopen, and we do not review it here. . Lindor failed to include a certificate of service when he initially attempted to file this second motion to reopen. See A.R. 18 (letter from clerk's" }, { "docid": "11352864", "title": "", "text": "his 2002 deportation. Following further briefing on the issue, the IJ issued a decision on November 22, 2010, holding that the immigration court lacked jurisdiction to adjudicate Guerrero’s § 212(c) waiver application or any other application for relief due to the departure bar of 8 C.F.R. § 1003.23(b)(1), which limited its jurisdiction to adjudicate motions filed by aliens who had left the United States. The IJ ordered Guerrero’s deportation for the third time. C. The BIA’s Sua Sponte Reconsideration Guerrero appealed this decision to the BIA on December 20, 2010. Three days later, on December 23, 2010, INS filed a motion to vacate the June 4, 2008 sua sponte reopening order. On December 27, 2012, the BIA issued its decision—the subject of this appeal—determining that its June 4, 2008 order sua sponte reopening proceedings was issued in error. Citing “legal and factual errors in its prior decision to sua sponte reopen proceedings,” the BIA reconsidered the June 4, 2008 decision, and ultimately denied Guerrero’s March 17, 2008 motion to reconsider. Accordingly, the BIA granted INS’s motion to vacate; vacated its own June 4, 2008 sua sponte order, as well as the IJ’s November 22, 2010 decision ordering Guerrero’s deportation; denied Guerrero’s March 17, 2008 motion to reconsider; and dismissed Guerrero’s appeal from the IJ’s November 22, 2010 decision as moot. The BIA then declared that its January 23, 2002 deportation order remained in effect. II. ANALYSIS Advancing multiple arguments, Guerrero now petitions for review of the BIA’s November 27, 2012 order (the most recent one) effectively denying sua sponte reopening proceedings, and asks us to reverse it. But we cannot. We lack jurisdiction to do so. Although we typically have jurisdiction to review the denial of a motion to reopen by the BIA, “there are exceptions to that general rule.” Peralta v. Holder, 567 F.3d 31, 32 (1st Cir.2009). One of these exceptions is the review of a “decision not to reopen removal proceedings sua sponte,” id., because “[tjhere are no guidelines or standards which dictate how and when the BIA should invoke its sua sponte power,” Córdoba-Quiroz v. Gonzales," }, { "docid": "23232996", "title": "", "text": "OPINION McKEAGUE, Circuit Judge. Nene Amy Barry seeks review of an order of the Board of Immigration Appeals (“BIA”) denying her untimely motion to reopen. To the extent we lack jurisdiction to review the BIA’s decision not to exercise its sua sponte discretion to reopen removal proceedings, we DISMISS the ap peal in relevant part. Because the BIA did not otherwise abuse its discretion when it denied Barry’s request to equitably toll the time limit for her motion to reopen, we DENY the petition. BACKGROUND A native and citizen of Guinea, Barry claims that she entered the United States in or about January 2003. In September 2003, Barry applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). At the conclusion of the merits hearing held on March 29, 2004, the immigration judge (“IJ”) issued an oral decision, denying Barry’s applications for asylum and withholding of removal and noting that she had withdrawn her request for CAT protection. On April 28, 2004, she filed a notice of appeal. While her appeal was pending, Barry claims that she married a United States citizen on June 29, 2005. On July 5, 2005, the BIA dismissed her appeal. On November 22, 2006—almost sixteen months after the BIA’s July 5, 2005 decision—Barry filed a motion to reopen and remand before the BIA. On February 22, 2007, the BIA denied her motion to reopen. ANALYSIS A motion to reopen must “be filed within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(I); see also 8 C.F.R. § 1003.2(c)(2). The time limits for filing a motion to reopen “are crystal clear.” Randhawa v. Gonzales, 474 F.3d 918, 920 (6th Cir.2007). The 90-day period for filing a motion to reopen is subject to narrow exceptions: (1) where the BIA reopens the proceedings sua sponte; (2) where the parties agree to reopen the proceedings; (3) changed circumstances in the country of nationality of which there is new, material evidence that could not have been discovered or presented at the time of the original proceeding; and" }, { "docid": "22197099", "title": "", "text": "September 7, 2001. On November 8, 1999, the IJ denied Prado’s application for suspension of deportation on the ground that she had not shown the requisite level of hardship to herself or her U.S. citizen children. Prado filed a pro se appeal, allegedly prepared by Ms. Rodriguez. On January 8, 2003, the BIA affirmed the denial of suspension of deportation without an opinion. The BIA. denied Prado’s subsequent pro se motion to reconsider on the merits on July 16, 2003. On October 14, 2003, almost four years after Hernandez’s appeal was dismissed and ten months after Prado’s appeal was dismissed, petitioners, now represented by current counsel, filed a motion to reopen. They argued that they were denied due process and are entitled to have their de portation proceedings reopened because of the deficient assistance they received from Ms. Rodriguez. On April 28, 2004, the BIA denied their motion, and petitioners timely filed this petition for review. II. STANDARD OF REVIEW This court reviews the BIA’s ruling on a motion to reopen for abuse of discretion. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.2008). Questions of law, as well as claims of due process violations, are reviewed de novo. Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir.2000). III. ANALYSIS Petitioners claim their deportation proceedings warrant reopening because their due process rights were violated by the deficient assistance of an immigration consultant. They assert an ineffective assistance of counsel claim even though they concede they did not retain counsel. The BIA found that petitioners could not base such a claim on the deficient advice of a non-attorney, relying on our decision in Singh-Bhathal v. INS 170 F.3d 943 (9th Cir.1999). In Singh-Bhathal, we held that reliance on the mistaken advice of a non-attorney immigration consultant was insufficient to demonstrate the “exceptional circumstances” necessary for reopening an in absentia deportation order. Id. at 946-47. “Ineffective assistance of counsel in a deportation proceeding is a denial of due process under the Fifth Amendment if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Lopez v." }, { "docid": "22762388", "title": "", "text": "failure to meet the September 11, 1998 deadline constituted a failure to exhaust his administrative remedies. This failure deprives this Court of jurisdiction specific to the special exception for reopening a deportation case under NACARA. B. An IJ’s sua sponte authority Despite Alvarado’s failure to file a timely petition under NACARA, Alvarado contends that the IJ should have exercised his sua sponte authority to reopen the case. The Code of Federal Regulations grants an IJ sua sponte authority to reopen a case. 8 C.F.R. § 1003.23(b). It states that “[a]n [IJ] may upon his or her own motion at any time, or upon motion of ... the alien, reopen or reconsider any case in which he or she has made a decision .... ” Id.; accord Wang, 260 F.3d at 453; In re G-D-, Int. Dec. 3418, 1999 WL 1072237, 1999 WL 1072237 (BIA 1999). Likewise, 8 C.F.R. § 1003.2(a) grants the BIA similar sua sponte authority. This Court has not yet ruled as to whether it has jurisdiction to consider whether an IJ or the BIA should have exercised sua sponte authority to reopen a case. Wang, 260 F.3d at 453 & n. 4 (declining to decide whether jurisdiction was appropriate regarding the IJ’s decision not to exercise sua sponte jurisdiction because petitioner had failed to exhaust administrative remedies); cf. Lara v. Trominski, 216 F.3d 487, 496 (5th Cir.2000) (holding — in the context of a timely filed motion — that jurisdiction is proper to consider a BIA’s denial of a motion to reopen). Multiple circuits have held that they lack jurisdiction to hear such claims. See, e.g., Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002) (“Because we cannot discover a sufficiently meaningful standard against which to judge the BIA’s decision not to reopen under § 3.2(a), we hold that we do not have jurisdiction to review the [petitioners’] claim that the BIA should have exercised its sua sponte power.”); Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999) (opining that it had no jurisdiction to review a petitioner’s claim that the BIA should have invoked its sua" }, { "docid": "3797095", "title": "", "text": "the same INS officer as before. She repeated the information she had told him previously. On August 11, 1997, Socop-Gonzalez, through new counsel, filed a motion to reopen his case and to reconsider the withdrawal of his appeal from the BIA. The BIA denied the motion to reopen because it was not filed within 90 days of the BIA’s May 5, 1997 decision. The BIA also denied the motion to reconsider because it was not filed with 30 days of the BIA’s decision. Finally, the BIA declined to exercise its power to reopen or reconsider cases sua sponte, stating that the power was available only in exceptional circumstances and that Socop-Gonzalez failed to demonstrate that his case involved exceptional circumstances. The BIA did not respond to Socop-Gonzalez’s argument that the government was estopped from enforcing the statute of limitations against him. II We have jurisdiction to review the .BIA’s decision under the INA § 106(a), 8 U.S.C. § 1105a(a), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), 110 Stat. 3009-546, § 309. We review the BIA’s ruling on a motion to reopen for an abuse of discretion, see Shaar v. INS, 141 F.3d 953, 955 (9th Cir.1998); Arrozal v. INS, 159 F.3d 429, 432 (1998), but we review de novo questions of law, including dismissal on statute of limitations grounds, see Lopez v. INS, 184 F.3d 1097, 1099 (9th Cir.1999); Shaar, 141 F.3d at 955. A motion to reopen deportation proceedings “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceedings sought to be reopened, or on or before September 30, 1996, whichever is later.” 8 C.F.R. § 3.2(c)(2). The parties to this appeal do not dispute that Socop-Gonzalez’s motion to reopen was untimely. The final administrative decision in this case was entered on May 5, 1997, when the BIA accepted Socop-Gonzalez’s withdrawal of his appeal of his asylum claim. Socop-Gonzalez did not file the motion to reopen until August 11, 1997, seven days after the 90-day window had closed. Instead, Socop-Gonzalez" }, { "docid": "22561123", "title": "", "text": "Mejia conceded deportability and renewed his application for asylum. The IJ denied this second asylum application one year later in an oral decision, but granted Mejia’s alternative request for voluntary departure. Although the IJ, as noted above, fully credited Mejia’s testimony, she ruled that Mejia failed to demonstrate eligibility for asylum. Nearly six years after Mejia filed his appeal from the IJ decision, a divided BIA panel denied it on May 30, 2000. In dissent, chairman Schmidt stated that Mejia had demonstrated that he feared persecution on account of imputed political opinion and thus merited asylum relief. Following this denial, Mejia filed a motion to reopen with the BIA, seeking to present new evidence. A divided BIA panel, chairman Schmidt again dissenting, denied this motion on November 15, 2000. Mejia petitions for review of this denial. JURISDICTION The INS argues that this court lacks jurisdiction to consider Mejia’s petition for review. If the INS was correct that Mejia was attempting to petition for review from the BIA’s May 30, 2000, denial of his appeal, its jurisdictional argument would have merit, as the petition to this court would be much too late. But Mejia instead seeks review of the BIA’s November 15, 2000, order denying his motion to reopen. The opening page of Mejia’s opening brief states that Mejia seeks review of the BIA order issued on November 15, 2000, and this statement is followed by a citation to the part of the record that contains the November 15 order. Mejia petitioned for review of the November 15 order denying his motion to reopen on December 14, 2000. According to the applicable transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRI-RA”) and our case law, the petition was timely and this court has jurisdiction to review it. IIRIRA § 309(a), (c)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1183 (9th Cir.2001) (en banc). ANALYSIS I. STANDARD OF REVIEW Denials of motions to reopen are reviewed for an abuse of discretion, although de novo review applies to the BIA’s determination of purely legal questions. See Rodriguez-Lariz v. INS," }, { "docid": "22664745", "title": "", "text": "PER CURIAM. Petitioner Sukhraj Kaur, a native and citizen of India, petitions this Court for review of a June 20, 2003 order of the Board of Immigration Appeals (“BIA” or “Board”) denying petitioner’s motion to reopen proceedings in order to submit “new evidence” regarding her asylum claim. In an earlier order, dated December 13, 2002, the BIA affirmed a decision by an immigration judge (“IJ”) denying petitioner’s application for asylum and withholding of removal, and further denied petitioner relief under the United Nations Convention Against Torture, adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85; 8 C.F.R. § 208.16. We assume that the parties are familiar with the facts, the procedural history, and the scope of the issues presented on appeal. As a threshold matter, we note that our review is limited to the BIA’s decision not to reopen petitioner’s removal proceedings. Petitioner did not timely petition for review of the December 13, 2002 order of the BIA that affirmed the IJ’s denial of her underlying asylum application. It is also well-established that the filing of a motion to reopen does not toll the time for filing a petition for review of the BIA’s final exclusion or deportation orders, such as the December 13, 2002 order. See Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). We are therefore “precluded from passing on the merits of the underlying exclusion proceedings,” and must confine our review to the denial of petitioner’s motion to reopen these proceedings. Zhao v. DOJ, 265 F.3d 83, 90 (2d Cir.2001). We review the BIA’s denial of a motion to reopen for abuse of discretion. Zhao, 265 F.3d at 92-93. “An abuse of discretion may be found in those circumstances where the Board’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 93 (internal citations omitted). Petitioner’s appellate brief argues the merits of her underlying asylum claim, but" }, { "docid": "22630747", "title": "", "text": "OF REVIEW The decision whether to grant or deny a petition for habeas corpus is reviewed de novo. Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir.1995) (citing Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir.1988)). Likewise, whether the court must dismiss the petition for review goes directly to the court’s subject matter jurisdiction and is therefore subject to de novo review. See Ma v. Reno, 114 F.3d 128, 130 (9th Cir.1997); Sahni v. Am. Diversified Partners, 83 F.3d 1054, 1057 (9th Cir.1996). III. DISCUSSION A. Petition for Review This court has jurisdiction over petitions for review to “determine whether jurisdiction exists.” Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir.2000). Therefore, the question of whether one is actually an alien would normally give rise to such jurisdiction. However, Taniguchi’s claim of citizenship fails because she has not exhausted her administrative remedies as required by statute. Under INA § 242(d)(1), 8 U.S.C. § 1252(d)(1), “[a] court may review a final order of removal only if — (1) the alien has exhausted all administrative remedies available to the alien as of right.... ” Tani-guchi did not raise the issue of citizenship before the IJ in the initial removal proceedings, and she did not appeal the order of removal to the BIA. The matter before us, therefore, is not the order of removal by the IJ, because of the failure to appeal to the BIA. The matter before us is the motion to reopen. The IJ denied the motion to reopen on the grounds that it was untimely. A motion to reopen must be filed within 90 days of the final order to be timely. See 8 C.F.R. § 3.23(b)(1) (1999). The order of removal was issued on April 14, 1999 and the motion to reopen was filed on August 1, 1999, more than 90 days later. On August 9, 2000, the BIA affirmed the IJ’s denial of the motion to reopen as untimely for the reasons expressed by the IJ. In Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir.2001) (en banc), we held that 8 C.F.R. § 3.2 is subject" }, { "docid": "22539049", "title": "", "text": "apply to petitioner because he was not charged with smuggling aliens. The BIA first mailed its June 24, 1994 decision to the address that the petitioner’s representative had originally supplied. The petitioner’s representative had moved and notified the BIA of his new address by mailing a letter to the Executive Office of the Immigration Review, Board of Immigration Appeals on September 30, 1993 — long before the BIA issued its decision. When the BIA realized the mistake it made, it sent another copy of the decision to the correct address on July 22,1994. On October 20, 1994, Martinez-Serrano filed a petition for review. On October 27, 1994, this Court issued an order to show cause why the petition for review should not be dismissed for lack of jurisdiction, as it was filed more than 90 days after the date of the BIA’s June 24, 1994 decision. Martinez-Serrano filed a response to the order to show cause, and the INS filed a reply to the response and a motion to dismiss. This Court denied the INS’ motion to dismiss for lack of jurisdiction and ordered the parties to address in their briefs whether this Court should adopt the Second Circuit’s approach with respect to this Court’s jurisdiction over this petition. II. BIA’S DISMISSAL OF APPEAL OF IJ’S DECISION Martinez-Serrano argues that on a petition for review of the BIA’s denial of the motion to reopen or reconsider, this Court reviews both the decision dismissing the appeal and the denial of the motion to reopen or reconsider. For support, he cites Padilla-Agustin v. INS, 21 F.3d 970, 973 (9th Cir.1994) and Ogio v. INS, 2 F.3d 959, 960 (9th Cir.1993). 8 U.S.C. § 1105a(a)(l) states that “a petition for review may be filed not later than 90 days after the date of the issuance of the final deportation order.” This statutory time limit is both mandatory and jurisdictional. Carancho v. INS, 68 F.3d 356, 359 (9th Cir.1995) (quoting Hernandez-Rivera v. INS, 630 F.2d 1352, 1354 (9th Cir.1980)). In Padilla-Agustin and Ogio, we held that “a motion to reopen or reconsider, or a" }, { "docid": "22669184", "title": "", "text": "relief under the Conven tion Against Torture. The BIA affirmed the IJ’s decision, dismissed Cano’s appeal, and denied his motion to reopen. This petition followed. STANDARD OF REVIEW We review the BIA’s denial of motions to reopen or to reconsider for abuse of discretion, “although[de novo] review applies to the BIA’s determination of purely legal questions.” Mejia v. Ashcroft, 298 F.3d 873, 876 (9th Cir.2002); see also Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000) (motion to reopen); Padilla-Agustin v. INS, 21 F.3d 970, 973 (9th Cir.1994), overruled on other grounds by Stone v. INS, 514 U.S. 386, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (motion to reconsider). “We review de novo claims of due process violations in deportation proceedings.” Perez-Lastor v. INS, 208 F.3d 773, 777 (9th Cir.2000) (citation omitted). Review is limited to the BIA’s decision because the BIA reviewed the IJ’s decision de novo. Agyeman v. INS, 296 F.3d 871, 876 (9th Cir.2002). DISCUSSION I Due Process Cano argues that the BIA abused its discretion by failing to address his claim that the IJ denied him a meaningful opportunity to present his ease. The BIA concluded the IJ did not err in denying Cano’s motion to reconsider because Cano chose to proceed without an attorney, was presented with options regarding whether to present his asylum application, and voluntarily elected to withdraw his application. We will not disturb the BIA’s decision unless it acted “arbitrarily, irrationally, or contrary to law.” Singh, 213 F.3d at 1052. Here, the IJ did not provide Cano “a full and fair hearing of his claims and a reasonable opportunity to present evidence on his behalf,” as required by the Fifth Amendment’s guarantee of due process in deportation proceedings. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). Complicating review in this case is the IJ’s decision to go off the record to tell Cano before he had the opportunity to present oral testimony or documents in support of his application that he had no basis for an asylum claim. We know only that at some time during the recess the IJ explained" }, { "docid": "22763792", "title": "", "text": "subjective discretionary judgment that has been carved out of the court’s jurisdiction). We have held that traditional abuse of discretion challenges recast as alleged due process violations do not present sufficiently colorable constitutional questions as to give this court jurisdiction. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir.2005) (citing 8 U.S.C. § 1252(a)(2)(B)®) (holding that the petitioner’s argument that the Immigration Judge (“IJ”) violated her right to due process by misapplying the facts of her case to applicable law was “nothing more than an argument that the IJ abused his discretion, a matter over which we have no jurisdiction”). Here, the BIA’s denial of the motion to reconsider falls outside the court’s jurisdiction because the court cannot reconsider the discretionary, fact-based determination that petitioners failed to demonstrate the requisite hardship. See Sarmadi v. INS, 121 F.3d 1319, 1322 (9th Cir.1997) (holding “where Congress explicitly withdraws our jurisdiction to review a final order of deportation, our authority to review motions to reconsider or to reopen deportation proceedings is thereby likewise withdrawn”); see also Fernandez v. Gonzales, 439 F.3d 592, 601 (9th Cir.2006) (holding court lacks jurisdiction to review the BIA’s denial of a motion to reopen where the BIA already denied cancellation of removal on direct appeal based on failure to demonstrate exceptional and extremely unusual hardship, and the newly introduced evidence spoke to the same hardship). Accordingly, we lack jurisdiction to review the BIA’s denial of the motion to reconsider because petitioners’ contentions, namely that the agency failed to properly weight their hardship evidence, does not state a colorable due process claim. See Martinez-Rosas, supra, 424 F.3d at 930. Further, we lack jurisdiction to review petitioners’ contention that the agency abused its discretion in denying the motion to reopen to seek prosecutorial discretion based on the recent order of President Obama. See 8 U.S.C. § 1252(g); see also Barahona-Gomez v. Reno, 236 F.3d 1115, 1120-21 (9th Cir.2001) (holding that section 1252(g) barred review of discretionary, quasi-prosecutorial decisions by asylum officers and INS district directors to adjudicate cases or refer them to immigration judges for hearing). Lastly, to the" }, { "docid": "22760422", "title": "", "text": "review the BIA’s assessment of moral turpitude or its order of removal because the time in which to petition for review has elapsed, we do have jurisdiction to review the denial of Membreno’s motion to reopen for abuse of discretion. See Caruncho, 68 F.3d at 360-62. In her motion to reopen, Membreno asserted that she would not be subject to removal even if her crime were deemed to be one of moral turpitude because she qualifies for the INA’s “petty offense” exception, and that position is advanced in her petition for review. We review the BIA’s decision on a motion to reopen for abuse of discretion. Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996). The BIA properly denied Mem-breno’s motion to reopen because Membre-no presented the BIA with no new facts, but only new legal arguments. “A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing....” 8 C.F.R. § 1003.2(c)(1). The BIA did not abuse its discretion when it declined to reopen proceedings because Membreno presented no new facts in her motion to reopen. DISMISSED in part and DENIED in part. . We adopt much of our factual statement and procedural history from the summary set forth in the earlier three-judge panel opinion at Membreno v. Ashcroft, 385 F.3d 1245, 1246-47 (9th Cir.) (per curiam), withdrawn by 388 F.3d 738 (9th Cir.2004). . The Department of Justice transferred the functions of the Immigration and Naturalization Service to the Department of Homeland Security in March 2003. See Homeland Security Act of 2002, Pub.L. No. 107-296, § 471, 116 Stat. 2135, 2205 (codified at 6 U.S.C. § 291) (2002). For convenience, we refer to the INS throughout rather than the Department of Homeland Security. . Because the BIA summarily affirmed the IJ’s decision we review the IJ's decision as if it were the BIA's decision. Thomas v. Gonzales, 409 F.3d 1177, 1182 (9th Cir.2005) (en banc). . Our case law recognizes two" } ]